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Champerty and Other Common Law We Could Use Today 158

Posted by kdawson
from the officious-intermeddling dept.
pevans writes "Over on Red Hat's Opensource.com I found this neat summary of a few old laws that could really help us today with the patent trolls. The article 'What's wrong with champerty?' is brief, but full of legal goodness that seems to have fallen by the wayside: 'Let's bring back barratry, maintenance, and champerty for patent lawsuits. Combine that with a limitation on the assignment of patents and a lot of patent trolls would be out of business. ...do patents have to be freely assignable? And why can't we prohibit a cause of action for patent infringement where there is no net gain to society?"
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Champerty and Other Common Law We Could Use Today

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  • Trial By Combat! (Score:3, Insightful)

    by Greyfox (87712) on Wednesday January 27, 2010 @02:21AM (#30914396) Homepage Journal
    I shall ready the trebuchet!
    • Re:Trial By Combat! (Score:4, Interesting)

      by Ihmhi (1206036) <i_have_mental_health_issues@yahoo.com> on Wednesday January 27, 2010 @04:26AM (#30914818)

      I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

      If things get bad enough that you would want to kill someone, as it stands now the attacker might miss a few times with his handgun and hit innocent bystanders. At least it would remove that risk to a degree.

      Makes me wonder if any of the states with their silly old archaic laws still have a dueling law on the books.

      • by PopeRatzo (965947) * on Wednesday January 27, 2010 @06:35AM (#30915344) Homepage Journal

        I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18

        Typical secular left opinion.

        Since fetuses and corporations are people, they should be allowed to duel, too.

        • Didn't Accelerando have 'deuling' for corporations to settle disputes? Where the duel was a competition set up by the judge to determine which corporation was best for the economy. If I remember right the example in the book was which corp could set up the best trade agreement with the newly contacted aliens.

        • by dpilot (134227)

          Show me where to shoot a corporation to get a clean (maybe even messy) kill, and I'm with you.

          If the Supreme Court declared corporations to be persons in the early 1900s, why has the death penalty never been handed down to one, in the time since? Are they really that much better "people" than flesh-and-blood "people", that much more moral? It's also interesting that in Asimov's original, "The Bicentennial Man" that the robot wasn't granted his "humanity" until he'd sufficiently improved his system that he

          • by PopeRatzo (965947) *

            Hey, I'm with you, dpilot. The judges on the Supreme Court who decided that corporations are "persons" did incalculable harm to US society.

          • I'd settle for Life imprisonment. Where all shares are taken from shareholders and the company has to pay dividends to the government treasury for 25 years. If the company reports a loss in that time they are bankrupted and dissolved.

      • by EatHam (597465)

        I'd be perfectly fine with legalized dueling so long as there were set rules and the major players were above the age of 18 and mentally fit.

        It'd make the legal profession far more interesting if professional arguers were replaced with professional duelers.

      • I'm trying to wrap my head around what would then be an offshoot of that: gang dueling. At best it's an oxymoron, at worst it's an Erol Flynn movie.

        Drive-by dueling, would that then be akin to jousting?

        • by Ihmhi (1206036)

          (Modern) firearms would just make things too risky and messy. Just hand 'em a couple of sabers and have 'em slice it up in an arena.

      • Elected officials in Kentucky have to swear as part of their oath of office that they have never participated in a duel.
    • by plover (150551) * on Wednesday January 27, 2010 @07:35AM (#30915766) Homepage Journal

      I shall ready the trebuchet!

      Then I shall fetch thee a lawyer, that thou may'st have ammunition.

  • No, no, no. (Score:5, Insightful)

    by Jurily (900488) <jurily@@@gmail...com> on Wednesday January 27, 2010 @02:23AM (#30914400)

    What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

    What next? Stoning girls because they weren't virgins on their wedding?

    • Re:No, no, no. (Score:5, Informative)

      by Calinous (985536) on Wednesday January 27, 2010 @02:28AM (#30914416)

      Those laws were applicable in the 1916.
            As for the reasoning behind those laws, remember that the judicial system is paid from the country's budget, not by the legal taxes - so, indirectly, you pay for every case that goes to the judge. And, because of those lots and lots of cases that drag for a long time, your own case might take months and months or years and years.

    • by BlackHawk-666 (560896) <ivan.hawkes@gmail.com> on Wednesday January 27, 2010 @02:43AM (#30914474) Homepage

      I'm quite fond of stoned girls who aren't virgins.

    • Re:No, no, no. (Score:5, Informative)

      by Capsaicin (412918) on Wednesday January 27, 2010 @03:00AM (#30914524)

      What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet. That's what got us in this mess in the first place.

      No what got us into this mess in the first place was not applying tried and true law, but instead being stampeded into enacting new law because "oooooh it's the internet ... we need neeewwwww laws (that'll make a motza for the people I work for)." Take copyright and other so-called IP law back 25-50 years and we'd be in a much better position.

      That being said, the issues surrounding maintainance and champerty (which makes working on a contingency fee basis impossible) are a little more complicated. In my jurisdiction (NSW.au) these were still torts until 1993 when the Maitainance, Champerty and Barratry Abolition Act 1993 (NSW), was passed. Until then it was difficult for ordinary people to defend their legal rights as the cost of litigation (the ultimate threat) would be prohibitive. So these torts acted in a highly anti-democratic fashion.

      OTOH after the Act was passed the amount if litigation obviously increased. And it increased to the point where it was felt necessary to curtail the remedies available to individuals (via the Civil Liability Act 2002 (NSW)). So the abolition of these torts ultimately acted to reduce an individual's rights. Also it made lawyers unpopular as happens when a people becomes more litigious.

      Difficult.

      • by Jurily (900488)

        the cost of litigation (the ultimate threat)

        And there we have the main problem with the legal system today.

      • Re:No, no, no. (Score:5, Informative)

        by cthugha (185672) on Wednesday January 27, 2010 @04:16AM (#30914772)

        Contingency fee arrangement of the "no win, no fee" variety are not champertous, and have always been allowed in Queensland (my home jurisdiction) were champerty was not abolished as it was elsewhere in the Commonwealth. What is prohibited as champertous are fee arrangements under which lawyers' fees are calculated as a percentage of the final award in a proceeding. It's a fine line, but that's what comes out of the cases.

        I'm not sure of the precise historical reasons for the abolition of these torts in New South Wales, but I note that they also create difficulties for types of litigation funding that are considered legitimate, e.g. funding by public interest groups or unions. IIRC, union lobbying was behind much of the Victorian Wrongs Act, which (in its original form) abolished maintenance and champerty in that State as well as making a whole load of other changes in relation to civil liability for negligence and personal injury.

        • I'm curious. Does a "not to exceed" clause violate the law? Say a client and lawyer agree on a fee of $1000 but the jury awards the client just $500. Is it acceptable for the agreement to be "$1000, but not to exceed the awarded damages?"

          • by Tanktalus (794810)

            "My fees will be $10m, but not to exceed 40% of awarded damages." "But, but ... we're only suing for $1m?"

            Something tells me lawyers would find a loophole on that before it was ever proposed.

          • by cthugha (185672)
            No it doesn't, because it's not the basis on which the fees are calculated. In fact, the local Law Society where I am enacted a professional rule a while ago to the effect that fees under no win, no fee arrangements couldn't exceed half of what the client ended up getting. This followed a rather embarrassing case where a firm charged more than the amount of the payout made to the client, claiming that since money had been paid out by the defendant the client had achieved a "win".
      • This is exactly why lawyers should be arbitrarily appointed by the judge as if drawn from a hat.

        Scenario:

        Big Company (BC), wants to sue Joe Blow (JB), for some reason, the BC has to appear before a judge and state the nature of the suit. The judge pulls out of the hat three names of lawyers, of which the BC chooses the one they want.

        At the same time, JB is in the courtroom and the judge pulls our three names from the pool.

        The judge gives each person one month to prepare. The judge then requires each side t

    • Re:No, no, no. (Score:5, Informative)

      by Anonymous Coward on Wednesday January 27, 2010 @03:16AM (#30914568)

      I agree. What the article fails to mention is why these principles have fallen by the wayside.
      1) Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state. As is clear even from the wording of the law, it wasn't designed to uphold justice, the nod at the end notwithstanding, but to keep things quiet, which was in the best interest of the king. Nowadays, in a state ruled by representatives of the citizenry for the citizenry, rather than by the king for the king, the principle of barratry has no place.
      2) Maintenance (and thus champetry) makes it impossible for charities to for example support people who are in a protracted legal battle with an organisation with much deeper pockets. Again, we can see that this is a very useful law for the aristocracy but not for the common people.
      Both these principles were from a time when the single purpose of the law was to enforce stability, and where it served justice, it only did so as a means to that end. Although vestiges of that past are still visible in our laws today, the current attitude is that the law should provide justice and protection to the citizenry. If there are laws that don't serve this end* they should be changed or abolished.
      *Previously on Slashdot:
      UK Censorship: Demonic Consequences [slashdot.org]
      In the UK, a Few Tweets Restore Freedom of Speech [slashdot.org]
      A New Libel Defense In Canada; For Blogs Too [slashdot.org]
      In Britain, Better Not Call It Bogus Science [slashdot.org]
      And you can help make the world a better place: Libel Reform Campaign [libelreform.org]

      • Re:No, no, no. (Score:5, Insightful)

        by hey! (33014) on Wednesday January 27, 2010 @08:04AM (#30915966) Homepage Journal

        You voice my objections to the article better than I could.

        That said, what we are talking about is a phenomenon where the abolition of one class of legal abuse tends to lead to another, new class of abuse. As long as there is law and there are people with money interested in subverting the law for their own purposes, you'll have new abuses dreamed up by creative and unscrupulous lawyers.

        So this is not a matter of getting the law right, but keeping up with the development of novel abuses.

        We needn't resurrect the doctrine of champetry wholesale as it existed a century ago to address the most flagrantly abusive forms of maintenance. The problem with champetry is that it assumes that because contingency fees create an incentive to maintain frivolous lawsuits, that any lawsuit undertaken by a lawyer with a contingency fee is necessarily frivolous. That's only true if we assume that substantive lawsuits are brought exclusively by gentleman of means.

        The real problem is not the fee arrangements, but the use of law to obtain plaintiffs privileges beyond what the law grants them. It is the use of the law to undermine the rational basis of the law.

        So the point the article makes is better than it appears. Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is a legal fiction.

        • Re: (Score:3, Insightful)

          (Much as I hate to do anything that might appear to support patent trolls ...)

          Patent trolls use the law to redress injuries that would not exist were it not possible to obtain "relief" through the courts. This is not the case for patent holders who produce actual products using the patents, because infringers take money away from the patent holder's business. Patent trolls have no revenue or prospect of revenue save what they can obtain through lawsuits. Therefore the "injury" they suffer by infringement is

      • Re: (Score:2, Insightful)

        by Mr. Slippery (47854)

        Nowadays, in a state ruled by representatives of the citizenry for the citizenry...

        See, that's the problem. We don't have that. If we did, we wouldn't have the patent system that we do. What we have is a state ruled by representatives of big businesses for big businesses.

        We need some sort of controls on barratry, not just to fight patent trolls but to stop SLAPPs [wikipedia.org].

      • Barratry allows the state to punish you if you start a court case. The criteria are vague, but generally come down to litigating too much. This can be a problem if for example a citizen is getting repeatedly screwed over by some other citizen, company, organization or even the state

        Not if the citizen being repeatedly secrewed over is being screwed over a barrage of frivolous lawsuits which they can't afford to fend off (because even if you get costs back, they'll never really cover your true costs)

    • by r00t (33219) on Wednesday January 27, 2010 @03:39AM (#30914650) Journal

      What next? Stoning girls because they weren't virgins on their wedding?

      This would cut down on teen pregnancy, abortion, children growing up in broken families, STDs, and so much more.

      Modern science allows us to hunt down most of the guys too, so we don't have to be sexist. We can now get DNA just from a touch, and we can track tiny mutations in the microbes that people normally carry. Even a virus like HIV has mutations that can help lead back to the guilty party.

      We can build a database with everybody's DNA signature in it, and soon we'll be able to do full sequences including microbes. We could use GPS tracking on everybody so that we can reduce the search space. We could even have chastity belts with tamper alarms, for both male and female (they can alert on proximity).

      For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

      • by AliasMarlowe (1042386) on Wednesday January 27, 2010 @05:26AM (#30915036) Journal

        For the stoning itself, I think we should televize it live. We can auction off the right to throw the first stones, and we can sell tickets to throw the rest of the stones.

        With a bonus extra stoning, if anyone says "Jehovah" during the show, or if a stone-thrower's beard falls off.

    • What you need is to make sane fucking laws, not apply laws from before the wheel to the age of the internet.

      Close, but the assumption that a sitting government can make laws that can keep pace with an economy (and by proxy technology) was rejected well over 800 years ago [wikipedia.org].

      It never worked, it doesn't work, it never will work. Non-crazy people stop trying things that don't work.

  • by Senes (928228) on Wednesday January 27, 2010 @02:30AM (#30914424)
    All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income. Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.
    • Re: (Score:3, Insightful)

      by u38cg (607297)
      What about the capital they invested? Or is it OK just to take that off them?
      • by bencoder (1197139)
        that's different. Having money to purchase some capital, that money (presumably) came from production at some point, so assuming value for value, you could say they have contributed the same amount that the capital is "worth".
        • that's different. Having money to purchase some capital, that money (presumably) came from production at some point, so assuming value for value, you could say they have contributed the same amount that the capital is "worth".

          Couldn't the same reasoning be used by patent trolls. After all, they purchased their patents with their "hard earned money", so they have contributed something to society too...

          • by bencoder (1197139)
            I don't see patents as capital. They are restriction, essentially, having a patent is like "owning" a law restricting other people. The cost of gaining a patent is minimal and has no relation to the cost(or lack of cost) of producing the original item or idea.
    • Go on then, write that law for us to see.

    • by julesh (229690)

      Reform the laws so that people can't cash in on something they did not contribute to, no more random lawsuits aimed at people who did all their own work to bring things into existence.

      So if I buy a house, I'm not allowed to rent it out? Or sue somebody who built their own house on my land, thus attempting to live off what I paid for fair-and-square?

    • Re: (Score:2, Interesting)

      by Mr. Slippery (47854)

      All that needs to happen is to make it so people can't SPECIFICALLY claim property just for the sake of passive income.

      Exactly.

      Of course, we also need to apply that to absentee landlords and absentee business investors. That pretty much destroys capitalism as we know it. I'm okay with that.

  • by Anonymous Coward on Wednesday January 27, 2010 @02:33AM (#30914436)
    The patent system is for one thing only. To aid innovation.

    If the patent system doesn't aid innovation it fails its own raison d'être.
    If a part of the patent system doesn't aid innovation that part fails and should be removed.
    • Re: (Score:3, Interesting)

      by houghi (78078)

      Logic overload. What will happen is that the raison d'être will change.

      • by nedlohs (1335013)

        That would require a constitutional amendment, which is a slightly higher bar than the average lawmaking or judicial action.

    • by starbugs (1670420) on Wednesday January 27, 2010 @02:54AM (#30914506)

      Software patents stifle innovation [arstechnica.com].
      Yet they are still around.

      Many of us hate software patents [wikipedia.org]. (myself included).
      They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.
      Meanwhile we are happy when some large companies [microsoft.com] get bitten by patents [zdnet.com].

      Besides litigation, how do software patents benefit their holders?

      • by syousef (465911)

        They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.

        Innovative!? Quick, patent the technique!!!

      • by sorak (246725)

        Software patents stifle innovation [arstechnica.com].
        Yet they are still around.

        Many of us hate software patents [wikipedia.org]. (myself included).
        They limit what we can do, so we have to find innovative [openbsd.org] ways to avoid them.

        That they are only a problem when abused. If company X develops some new way of sorting data that allows them to produce a better database, then they deserve an opportunity to profit from their work, just as an inventor deserves a chance to profit from an invention. The fact that company X's invention is not embedded within a specific piece of hardware doesn't change the fact that they have contributed something.

        (And, unlike copyrights, software patents have a chance of dying before the product being patent

    • by dpilot (134227)

      You're living in the past. That's why both patents and copyrights were conceived in the Constitution.

      I fear that has little to do with why patents and copyrights are around now - especially copyrights. I'll be curious to see how patent law is tweaked, so that patents can continue to be a barrier-to-entry, yet get rid of patent trolls.

  • by Anonymous Coward on Wednesday January 27, 2010 @02:39AM (#30914462)

    Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it. They will inevitably be removed. The only question is: How long will we wait?

    • by starbugs (1670420) on Wednesday January 27, 2010 @03:06AM (#30914542)

      Patents and copyrights are both immoral protection rackets designed to hide information and make the rich richer. They stall human progress rather than help it.

      Hmmmm...

      The disclosure requirement lies at the heart and origin of patent law. A state or government grants an inventor, or the inventor's assignee, a monopoly for a given period of time in exchange for the inventor disclosing to the public how to make or practice his or her invention.

      src [wikipedia.org]

      So the idea of patents was so that there would be fewer trade secrets. At least that was before information traveled at the speed of light.

      • Re: (Score:3, Interesting)

        by mr_matticus (928346)

        Not fewer trade secrets, but a strong economic incentive to elect full disclosure, without the competitive disadvantage that comes with it. Trade secrets actually have become more pervasive as the patent system progressed, because companies have specifically elected against public disclosure.

        Patents help inventors who do not want to jump through the hoops of trade secret protection but also do not want to give away their hard (and often expensive) work. The statutory schemes primarily help smaller players

        • by cmholm (69081) <.cmholm. .at. .mauiholm.org.> on Wednesday January 27, 2010 @04:09AM (#30914734) Homepage Journal

          mr_matticus closed by saying: But there is no way you can say with a straight face that on balance, these systems have not been wildly successful at encouraging investment in R&D, proliferation of art, and consumer access. At no other time in human history has so much been available to so many. Whining about the tiny fraction of extremely popular works that can afford to be highly selective about transactional terms is no way to suggest such an argument.

          I'll agree that the parent post may have been going a bit over the top. So, I'll attempt to focus on some specific issues:

          1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work. Hence, the icon for many of the /. patent-related stories.

          2) Holding Patents: The original intent of the framers when setting up patent law was that inventors enjoy a limited window of time to enjoy the fruits of their inventions via a monopoly granted by the state. IANAL, but baring someone pointing out long established case law to the contrary, I'd bet money that the framers didn't foresee and would have legislated against "patent trolls".

          Pray tell, what does it gain society to permit a business whose sole purpose is to quietly sit on patents in the hope that they don't turn up during a patent search, waiting to jump on the next goat who makes an actual product that might conceivably infringe? This business method is aided and abetted by 1).

          • 1) Getting a Patent: There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one.

            It's no secret that the Patent Office is badly understaffed. That's not a systemic flaw (at least in the patent system), it's a flaw in public priorities and government spending.

            This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work.

            While it's true that a lower workload would result in more time per application, there are two major problems with the presentation of this point on Slashdot:

            1. "Novel" and "Non-obvious" are grossly mischaracterized and misunderstood by the overwhelming majority of posters, with the particular point being what portions of the appl

          • Re: (Score:3, Informative)

            by Dachannien (617929)

            There's evidence that the USPTO isn't doing its job at examining patent applications. There are a slew of Federal regulatory services that have been suffering for years from inadequate staffing, the USPTO being one. This seems to be manifesting itself in the examiners not having time to spot a lot of obvious or non-original work.

            To some degree this is true, but I want to make it clear that most of us do our job as well as we can in the time provided. Unfortunately, as you mention, we don't have the time needed in some cases. It's taken a lot of arm twisting to get management to agree to modify the way our production is measured, and they were kind enough to give us two more hours per case (sort of) in response to the massive issues with examiner attrition.

            But all of this goes back to Congress. The USPTO is supposedly a fee-funde

    • by phantomfive (622387) on Wednesday January 27, 2010 @03:47AM (#30914664) Journal
      Immoral? I'm not sure that word means what you think it does.

      In an ideal world, people who enjoy an artists work would be able to pay the artist directly for their enjoyment. That way the artist is supported, and people who aren't interested don't have to support what they consider 'junk.' That is how it should be.

      In the real world, copyright is a pretty good way to get that done. Are there problems with it? Yes, and the law is a little behind the latest technology (big surprise). That doesn't mean everything about copyright is bad.

      Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song. Copyright for a reasonable length of time is not immoral, it's a good system.
      • by pla (258480)
        Usually people I see who consider copyright immoral are people who are too cheap to pay a dollar for a song.

        No doubt the millions dying needlessly of AIDS and Malaria (etc) would find your statement a comforting explanation of why big Pharma has no obligation to license their on-patent lifesaving drugs to low-cost (and even outright charitable) manufacturers.

        So yes, "immoral". Patents quite literally mean people suffer and die for no better reason than profit.


        As for copyright - Apply the current tr
        • No doubt the millions dying needlessly of AIDS and Malaria (etc) would find your statement a comforting explanation of why big Pharma has no obligation to license their on-patent lifesaving drugs to low-cost (and even outright charitable) manufacturers. .

          So, exactly why would big Pharma spend millions of dollars to develop a new drug, if they must give it away once it has been proven to work?

          Are there problems with the patent system? Absolutely!! Would eliminating it entirely fix those problems without creating even worse problems? Not a chance!

          • by pla (258480)
            Would eliminating it entirely fix those problems without creating even worse problems? Not a chance!

            I responded to a statement that patents have nothing to do with morality. I provided a clear counterexample (unless you consider "profit" a greater moral good than "lifesaving").

            I also didn't call for the complete abolition of IP law - A hefty overhaul, yes, but I agree with you to the extent that companies need some incentive to do real R&D rather than just clone the work of others.


            So, exactly w
        • As for copyright - Apply the current trend of perpetual extensions to a few works that actually mean something to you, to which you have access only because they lack a current copyright... How about the bible? "Sorry, not yours, the Vatican holds the copyright and forbids any distribution". Newton's Principia. Darwin's Origin of Species. Hubbard's Dianetics - Oh, wait, that one does have a current copyright, and look how open and morally they behave.

          This is a dumb argument that doesn't even address what I said.In other words, I never said that perpetual copyright is a good thing. You fail at either logic or basic reading comprehension, or both.

          • by pla (258480)
            This is a dumb argument that doesn't even address what I said.In other words, I never said that perpetual copyright is a good thing. You fail at either logic or basic reading comprehension, or both.

            I couldn't have said it better myself.

            Though I have to admit - Balls man, great big ones. To attack a side point tagged on to the end of my post, while ignoring the actual response to what you did say, and then claim I didn't address what you said? 9/10.

            <cue golfclap>
            • The first half of your post was about patents. It wasn't related to what I said originally at all. Double fail. :)
      • by melikamp (631205)
        Copyright is in the direct conflict with the freedom of speech, and there is not a shred of evidence that it provides an actual incentive to produce works of art: i.e. there is no evidence that fewer works would be produced without it. It follows that it only benefits the lucky few, while the public gets stuck with a tax on all art production and consumption. Looks like a pretty good case for it being immoral.
        • Copyright is in the direct conflict with the freedom of speech, and there is not a shred of evidence that it provides an actual incentive to produce works of art

          You're kidding, right? This is so dumb I almost didn't want to respond to it. Have you actually looked for evidence? There is tons of evidence that the monetary incentive encourages content creation.

          It follows that it only benefits the lucky few,

          You mean like ARTISTS?

          while the public gets stuck with a tax on all art production and consumption.

          I think it is fair for people who consume art to pay those who produce it. Why do you have a problem with this?

          • by melikamp (631205)

            There is tons of evidence that the monetary incentive encourages content creation.

            Monetary incentive is an assurance of payment. Of course, if an artist has an assurance of payment (e.g. a contract or a steady pay check) then she will be encouraged to create. The problem is that the copyright does not provide such assurance, so what you are saying here is irrelevant.

            There is no evidence that the rate of artistic production is affected by the copyright term (which could go down to zero). There is very limited evidence that the types of artistic works are affected, but (even if totally t

    • by argStyopa (232550)

      Actually, no, that's a complete misreading of the intent & point of such laws.

      Imagine you invented The Next Great Thing in your garage.
      Without these laws, Supermegacorp, seeing your great idea, could (for a trvial investment on their part) copy your idea and annihilate you competitively.

      These laws protect innovation PARTICULARLY when the innovator is poor of resources to compete with rich&powerful opponents.

  • by Anonymous Coward

    Question: Why can't we prohibit a cause of action for patent infringement where there is no net gain to society?
    Answer: Because who is going to decide what constitutes a net gain for society? The government (Big Brother sends his regard)? A board of community leaders (who will be on the payroll of the big corporations in no time)? Judges (the same ones who make a mess of patent claims now)? That way madness lies ...

  • Barratry (Score:5, Informative)

    by DynaSoar (714234) on Wednesday January 27, 2010 @05:49AM (#30915136) Journal

    Barratry is alive and well, in both federal and many state judicial systems:

    http://www.abajournal.com/news/article/lawyer_awaits_verdict_in_barratry_trial_over_subpoena_sent_to_opposing_part/ [abajournal.com]
    http://www.lukegilman.com/blawg/2009/11/07/houston-lawyer-charged-with-barratry-for-having-homeless-man-hand-out-business-cards/ [lukegilman.com]
    http://www.citmedialaw.org/threats/state-oklahoma-miller-v-king [citmedialaw.org]

    In the case of "the offense of persistently instigating lawsuits, typically groundless ones",
    just making the accusation is often enough to make the attorney quit a case. They can be tried for it in court as well as being censured or disbarred, whereas the client can only be tried (often not understanding what it is and/or thinking their case's validity precludes such a charge). It may have been used successfully at least once in a context in which it is often discussed: "In Religious Technology Center v. Gerbode, 1994 WL 228607 (C.D. Cal. 1994), a Rule 11 sanction of $8,887.50 was imposed against Helena K. Kobrin, an attorney for the Church for bringing legally baseless, frivolous claims", however corroboration for this is lacking.

  • Patent trolls are in a very tenuous position -- in the absence of a lawsuit/settlement, they would not make _ANYTHING_ from their patents (even if valid). So their damages are _ZERO_. Not some hypothetical value had they chosen to manufacture or licence.

    Time to look at the concept of damages more closely, not just make them broad. There is a serious question whether juries should set damages, or perhaps as fact-finders be forced to break them down for appeals to review at-law.

  • or lack of, at least, like when there wasnt patents in general, or lasted a reasonable amount of time, or didnt existed trivial/common sense/"soft" patents.
  • by Grond (15515) on Wednesday January 27, 2010 @10:49AM (#30918164) Homepage

    The article was written in a very superficial way. The author avoids going into detail on how her proposed solution would be implemented and why it would not have negative side effects. I suspect she has not actually thought very deeply about the problem or her solution.

    But do patents have to be freely assignable?

    Patents are personal property--and thus freely assignable--by statute. 35 U.S.C. 261 [uspto.gov]. Assignability is also guaranteed by Article 28 of the TRIPS Agreement [wto.org], which is a treaty that the US is party to. So changing the assignability of patents would require amending the law and withdrawing from or amending a very important international treaty.

    And even if it were changed, it would mean that hundreds of patent holding companies would suddenly lose their patent rights because of an action by the government. Other patent holders would lose their right to freely assign their patents. That's called a taking, and the ex-patent holders and patent holders whose patents lost value because of the restriction would be able to sue the government for the value of the patents. It would be a massive litigation and cost the tax payer an enormous amount of money.

    But anyway, how does she suggest we restrict the assignability of patents? We could require that they only be assigned to an entity that intended to practice the invention. Sounds great, right? No more patent holding companies, therefore no more trolls. There are at least five big problems with that:

    1. Not all patents can be freely practiced because of other patents surrounding the technology. Imagine I own a startup company. If I invent a new transistor design I can't be expected to practice it myself: other companies have patents on things like manufacturing processes, bus designs, chip packaging, etc. I would have to license dozens of other patents in order to sell chips with my new transistor design. But that's backwards. Instead, I should license my one patent to companies like Intel and AMD and let them do the manufacturing and sales. But a requirement to practice means I couldn't do that; I'd have to practice it myself.

    2. And what about pure research institutions like universities? They can't be expected to also become manufacturers.

    3. But suppose we say it's worth making universities sell their patents. Well, now since they have to sell the patent only a single entity will get the rights. It can no longer stay with the university and be licensed to whoever will pay the fee. The end result is less competition in the market place for the finished product.

    4. Okay, suppose we say that it's sufficient that the patent owner license the patent to at least one entity that is going to practice it. But then the law is too narrow. Almost no patent trolls actually rely on litigation damages for income; it's too uncertain and the margins are too narrow and often negative. Litigation is just a tool to extract a licensing fee. So the end result is that the trolls can point to a manufacturer who licenses the patent and nothing changes.

    5. What about patents on technologies that are ahead of their time? For example, suppose I invented an amazing new transistor design. It will make computers much faster but it requires X-ray lithography in order to work. Well, X-ray lithography is not cost-effective yet, so I can't really practice my invention. Does my patent just evaporate? How does that spur innovation?

    So the author has carefully avoided actually explaining how her solution would be implemented and how it would be narrow enough not to have side effects yet broad enough to be effective yet not invite more litigation or government regulation.

    Trademark law dealt with a similar problem, a worry about trafficking in intent-to-use trademark applications, and solved it by forbidding the assignment of them "e

  • I'm in total favor of reviewing and reestablishing older precedent. For example, my store/school/park/pub or bar, my property, my responsibility, my liability so therefore my choice on who I want to serve.

    However, in this case, maybe it's not necessary. I think the champerty laws ultimately govern law processes, I think they can be abused to prevent you from opening a class action lawsuit, or as retribution for having successfully disrupted the system on account of a whistle blower.

    Regarding law, Lawyers

  • Rancman v. Interim Settlement Funding Corp. 99 Ohio St.3d 121 (2003):

    "We are asked to address whether a nonrecourse advance of funds secured solely by an interest in a pending lawsuit and at a contracted return exceeding 180 percent per year is permissible under Ohio law. We hold that it is not. Such an agreement constitutes champerty and maintenance and thus is void under Ohio law."

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