Patent Attorney On Why We Need To Rethink Intellectual Property 226
Techdirt called our attention to an interesting video of patent attorney Stephan Kinsella's presentation on 'Rethinking Intellectual Property Completely.' It's a long presentation, but well worth the time to watch. There is also an ongoing series of posts discussing intellectual property rights on Techdirt for additional reading.
For those of you looking for it ... (Score:5, Informative)
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Old concept in a new world (Score:5, Insightful)
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Re:Old concept in a new world (Score:4, Interesting)
Re:Old concept in a new world (Score:5, Insightful)
But if there is not a perceived investment opportunity, many drugs sold for high prices today (and lower prices tomorrow) would never have been developed.
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Oh yeah, because we don't alreayd have enough problems with government ruling a single nation, let's just create a global government to rule the world!
Re:Old concept in a new world (Score:4, Insightful)
Don't get me wrong. There are some things that are better done by the government even at the outrageous cost it requires, but it's almost never the most cost effective way to do something when the government does it.
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Re:Mod Down! (Score:4, Informative)
http://en.wikipedia.org/wiki/Thalidomide [wikipedia.org]
And from http://en.wikipedia.org/wiki/Antibiotic#Antibiotic_resistance [wikipedia.org]
The FDA exists to test and approve drugs to prevent tragedies such as the thalidomide and similar as well as to set usage policy to prevent future abuse of a drug. They are the balancing act between pharmaceutical advertisers pushing not only doctors but patients to demand specific drugs and the health and safety of the drug using public. In many cases, they are the only defense a patient has against the constant push for that magic bullet pill...
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What really gets me is when they take a commonly known herbal medicine and patent that, and only because the economically dominant half of the world burnt their herbalists a few centuries ago. That kind of "research" is like Christopher Columbus's "discovery."
Re:Old concept in a new world (Score:5, Interesting)
This is true, but maybe if we allocated our tax dollars better we would have better drugs yet. The way things are now, a lot of the research is already funded by tax dollars, even though private companies end up with the patents. They also pass up avenues for research that might result in cures, which are much less profitable than treatments.
The drug industry and health industry in general is a situation where the government interferes with the free market by enforcing patents and subsidizing some research and restricting other research. The problem is not necessarily government interference, but the fact that the government interference is directed by lobbyists making campaign contributions instead of by representatives acting in the best interests of the people.
quite wrong (Score:2)
It's true that companies pay a big part of drug development costs. But a big part is already paid for through grants. Now, if you look at the part that's paid for by companies, that comes from somewhere, and a lot of that actually is paid by the public again, through governmental programs. It turns out that if you grind through the math, it's cheaper to
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Well. So. This is true.
But what you haven't considered is that this reflects the amount of elective resources society desires to provide them with. I.e., this profit on their side, reflects consumer-side importance on the other.
This is disregarding the patent system, mind. Which I agree, is broken.
But to say that the drugs that people want to buy are the wrong ones... are you sure you wanted to say that?
C//
Re:quite wrong (Score:4, Insightful)
I disagree on that point. They have the incentive to capitalize on less competitive markets. You can spend the cash to patent an allergy medication, then are forced to advertise to carve out a small segment of that market. Meanwhile you can create treatments for which there is no alternative and can charge the maximum the market will pay. The reason some ailments are saturated with products is because they are better understood so it's easy to create treatments.
Alternatively government mandated research will become very focused based on the political climate and vocal special interest groups. Look at how much government spends on AIDS vaccine research vs how much of a public health threat it is.
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Drug companies have an incentive to create drugs to manage symptoms rather than cure the illness.
Sell a man a cure and you sell him a single packet, sell a man symptom relief and you have a customer for life.
You should see my folks monthly drug bill. We're talking $500 a month.
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Re:Old concept in a new world (Score:5, Insightful)
You've phrased this exactly backwards: is giving up a short term of exclusivity worth all the lives SAVED because someone took the time to invest the money in getting that drug from discovery through clinical trials.
Without patent protection, you'd have a free rider problem.
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Not that those are the only ways to value success. It can easily be any combination of both.
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At least in the case of pharmaceuticals and biotechnology, the arguments favoring patent protection have a lot more to do with the time and cost to get the invention to market than in many other fields. Simply getting a drug through clinical trials is a VERY expensive and risky endeavor.
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Crass as it may money grubbing scientists and businessmen make the best drugs right now.
Sure, like Vioxx [wikipedia.org] or Seldane, [wikipedia.org] right?
When you view the cash as the bottom line in the medical industry, you've got a problem. [pharmalot.com]
Saw this quote in a doctor's office, and it seems to fit here:
"A physician should not enter the trade with the heart of a moneychanger."
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Without patent protection, you'd have a free rider problem.
Epistemologically impossible. Companies must by definition have the money to invest in drug research before they know whether the research will produce a viable drug or not. There must also by definition be a consumer market that will purchase the drug if it ends up viable. Thus the incentive for drug research exists *independently* of patent protection. Solution: those who need a drug themselves invest their money in finding a cure that can be copied by all who need it.
By definition of drug company profit
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Not really. There are certain classes of products for which the development of the product itself is prohibitively expensive, but for which the production cost once developed is marginally little. For that class of products, the developer is penalized, because they now don't have their initial investment, and all the other com
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There are certain classes of products for which the development of the product itself is prohibitively expensive
That's 100% completely FALSE. If that were true, then even drug companies would not undertake the R&D risk as they would be definition be expecting to LOSE money on the venture.
but for which the production cost once developed is marginally little.
That's how it SHOULD be. That's accurate pricing based on economic REALITY.
For that class of products, the developer is penalized, because they now don't have their initial investment, and all the other competitors can thereby profit better than they can.
No, the developers are sick people who completely supply the incentive for the project undertaking in the first place. The only thing sick people care about is getting the drug developed and distributed for as cheap as possible. That by definition maxim
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It's important to first note that most companies DON'T do the original research. The discovery often arises out of research very far removed from commercial products. Where it goes from there is a very difficult problem to solve since the barriers to the first entity are very HIGH.
To get to market a drug has to be "discovered," make it through clinical trials, and be marketable at a cost that's "profitable." This whole process for the first company is prohib
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Absent protection, few people would have ANY incentive to take the risk when the next person can do it for nothing.
That's just completely 100% FALSE. The incentive lies 100% ultimately with the sick patients who want medical relief from an ailment. If the patients pay up front in advance for all the costs it takes to develop a drug that is by definition cheaper than paying for all the costs it takes to develop the drug PLUS the corporat
there are alternatives to patentry... (Score:2)
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Re:Old concept in a new world (Score:5, Interesting)
This [familiesusa.org] gives much more information.
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It's really not that surprising.
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Drug companies spend a healthy amount of money on marketing, and they make healthy profits, but the solution isn't to dismantle them, it is to build more efficient competito
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It's possible that the high profits were the reason that there was so much money for R&D in the first place, but i
Re:Old concept in a new world (Score:4, Insightful)
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And in other news, JPLemme founds his own trading firm and scores many financial successes. Or at least, one would suppose, you have your retirement plan all figured out?
You should know better than this.
C//
Re:Old concept in a new world (Score:5, Insightful)
The research of new drugs costs nowhere near what the marketing does.
Take a look at the financial report of your average pharmco; approximately 15-20% is spend on R&D, 40% on marketing and administration, and 40% on comparatively inefficient production (compare generics pricing).
That means we'd get 5 times as much medical R&D if the insurance companies and government simply funded it outright and let the free market generics handle the production and marketing. Or we could get the same level we're getting today at a fifth of the cost.
The only thing patents give you is monopoly inefficiency. A level of inefficiency that surpasses even what governments can waste on their own.
Imagine the diseases we could cure and the medicines we'd have access to had medical research funding not been bogged down and hindered by a century of patents.
Oh, well, at least you can be sure your doctor is well equipped with complimentary pencils and golf vacations.
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That means we'd get 5 times as much medical R&D if the insurance companies and government simply funded it outright and let the free market generics handle the production and marketing.
Assuming that the government could efficiently manage such a thing seems questionable. I wouldn't be too surprised if the cost turned out to be the same plus as the drug companies because of governmental inefficiencies (pork barrelling, set asides, ecess overheads, etc.) AND the time to market was much slower.
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While I agree that full government control over research would be better, its not as great as you think. A
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Go watch "Johnny Mnemonic" sometime. Pharmaceuticals companies exist to make money, the same as every other company. Even if they did find a cure for Cancer or AIDS do you honestly believe they'd market it?
The fact is that making $2000 a month for the drugs to treat a disease is a lot more profitable than making a one-time earning of $20,000 for each person cured of that disease. Companies are not beholden to the public but to their shareholders. Remember this. It's one of the reasons that companies lik
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I don't know. Supposing you were a Pharmaceutical company employee, how would you react to your bosses "not marketing" and AIDS cure? Should we assume that your assertion is understood through the process of projection? I.e., you see yourself as evil, know what you would do, and assume that everyone else
NO (Score:2)
longs answer compared to what they charge they make the money back instantly. They also make money back along the way, "so your hospital wants to be part of our trial for a cancer drug? it says here that only 80% of your patients are receiving ACME drugs during their stay..."
Sure if for every drug that makes it 100+ dont, but most that dont are scraped before they cost much, and those that do make it can easily pay for 1000+ drugs to be developed.
Re:Old concept in a new world (Score:5, Insightful)
And the process of innovation is rarely cheap. You use the example of drugs. For every one drug that makes it to market, hundreds of drugs fail animal tests or basic safety tests, and tens more fail in human trials. These are extremely expensive. Right now we compensate drug developers for the risk and expenses of drug design by allowing them to sell the successful drugs at a price above cost. Requiring that drugs be sold at or near cost would put a halt to innovation that has saved countless lives; there'd just be no reason to sink millions (or even billions) into research and testing if any competitor could copy your product as soon as it it the shelves.
There might be other ways to encourage innovation (government grants, government funding, competitions, etc), but any solution has to recognize that innovation is rarely cheap.
Re:Old concept in a new world (Score:5, Insightful)
If nobody can improve it further (which is the original reason for improvement patents), then it's hampering innovation in the first place.
If someone were to patent running processes on a computer, where do you think software innovation is going to go?
For drugs, the price is now dictated by the maker regardless of the cost of manufacturing...hello superexpensive medicines in africa? Whoops?
The millions and billions are collective research, not just solely put on one product. It's throwing money at the wall, waiting for some to stick, and suing the hell out of everyone once something does.
Re:Old concept in a new world (Score:5, Interesting)
If there were a way to know in advance which drugs would work then nobody would waste time looking at the unsuccessful ones.
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The question remains: is the most sensible way to pay for all that research to hide the cost in successful drugs? Is giving out temporary monopolies on the sale of drugs really the most efficient (and ethical) way to it?
On the surface of it, something feels "wrong" about having the price of drugs be so uncorrelated to their manufacturing cost. Digging deeper, it is surely bothers
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I ultimately disagree -- I doubt that we'd get as much successful research under your model -- but it's at least a solution that has some potential. I just fail to see universities conducting massive clinical trials, especially in light of the high risk of tort lawsuits for failed trials (see the gene therapy death [msn.com]). It's true that right now universities conduct a lot of the work of physical trials, but they are backe
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Yeah, but the high risk of lawsuits from failed trials is still a fault of the system of laws, not an inherent reason not to shift the effort out of the hands of commercial entities. In the absence of a broken legal system, I would expect that academicians and researchers in a pure research environment would be far more likely to produce successful research than those in the commercial world where the entire focus is on making a profit and drugs that would not be profitable get buried.
After all, we've se
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Real chemists know that there are actual patterns in chemistry and doctors know that there are receptors that need to be targeted.
No kidding. Drug developers don't randomly dump household chemicals into petri dishes trying to get a reaction. If you know that a given enzyme is relevant to a disease, it gives a general idea as to what kinds of drugs might work. The problem is that the human body is incredibly complex. Just look at one protein in the process of folding [cnx.org]. Tell me how easy it is to identify one molecule that will correct an error in that process without messing up other systems.
Drug designers use a pen and paper to na
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If nobody can improve it further (which is the original reason for improvement patents), then it's hampering innovation in the first place.
If someone were to patent running processes on a computer, where do you think software innovation is going to go?
While I'm not a patent fan in general, these are pure strawman arguments. It's quite obvious that someone will be able to use it, else it wouldn't have been developed. It's also quite clear that someone is able t
Re:Old concept in a new world (Score:4, Insightful)
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Unfortunately, that's not how basic research works.
Basic research is research that reveals "Protein X is involved with Alzheimer's" or "a shortage of enzyme Y leads to arthritis." That's a great head start, but
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If that were really the choice, then I would agree with you completely. But in reality if Bob doesn't invent something today then Charlie will likely invent it next year, or Dave the hobbyist will invent it in a decade when the field becomes widely understood.
Thinking about "NEVER INVENT" is absurd. The best case for patents is that they cause something to be invented sooner. And patents that last for 20 years are o
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Wouldn't it be more detrimental if the drug is never developed in the first place? Developing a new drug costs anywhere from $800 million to $2 billion dollars, and takes around 12-15 years. Of the drugs that come on the market, only around 30% of them actually make enough revenue to actually pay for all their upfront costs. It's a high risk game and I know people that have put in lots of money into making
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Well, maybe it's time to quit playing games and instead start taking the issue seriously. Improving the system isn't rocket science; it just means dumping the whole idea of patents and starting paying just for the actual R&D and letting the marketing and production be handled by the free market. In competition.
A functional system would get us five times the R&D for the same money we're paying the pharmaceuticals today.
I don't like high drug costs as much as the next guy
I don't m
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...starting paying just for the actual R&D and letting the marketing and production be handled by the free market.
See, this is just the kind of bullshit that comes up in all IP related discussions on /.: you want "freedom" and "competition", but raise a stink is somebody wants to use their freedom to do things you don't approve of, like advertising. In that case, of course we need to have the government step in (of course if they actually DID step in, then they'd be EVIL for manipulating the free market).
Either you have freedom or you don't. If you want freedom, then you'll have to live with other people making use o
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This is what government-owned nonprofit corporations are good at. You turn them loose with a huge chunk of funding. They act just like corporations do now, but without the incentive to turn a profit, which means that their excess income goes back into R&D and infrastructure. That's by far the most effective way to get just about anything in the public interest done, quite frankly. No bureaucrats should be involved in any significant way, as such organizations function as an autonomous entity (except
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If I invent something and sell at an outrageous prices, that's the market economy. If you don't want to pay $1,000; the
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I don't mind at all an individual altruistic desire to share with "humanity as a whole".
What worries me is the idea that "Intellectual property is a very egoist concept nowadays, in a time in which technological innovation can help so many people."
This smacks of a pretext for privileging a small, elite group of people who get to define "innovation" and "help" in ways that may or may not be to the liking of the "many", much less the "egoist" in question.
That whole "Fro
A better way of saying this... (Score:5, Insightful)
Let me summarize the conclusion as well... Good ideas on IP change do not matter at this point because nothing meaningful will happen until we can somehow get congress to stop their continuous feeding at the trough of corporate lobbyists...
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Re:A better way of saying this... (Score:5, Insightful)
In fairness, history tells me that this behavior was caused by "too good of times" for too long. Meaning, during the good times people really just ignore what their elected officials do. Once things turn sour for more than a brief period, however, this will change... I guess only time will tell if history will repeat itself..
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Of course this will never happen. The most recent amendment, the one that makes congressional pay raises take effect at the next term, has been proposed since the Constitution's ratification and was finally added in 1992.
Re:A better way of saying this... (Score:5, Insightful)
At first look, this does not seem like a bad thing, until you realize that most of the large businesses that exist today could have never grown up in such an environment.... Meaning, for a free market capitalism system to function, older obsolete businesses must die and new more competitive businesses must rise to take their place. In the current business environment, this mechanism cannot occur...
So, do you still think that startups are not being hurt??
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And yes, you are correct on one thing... Originally the US patent system was designed to help investment primarily for small time businesses. Those days for now are over... As it stands right now, the US patent system primarily profits large businesses to protect being being displaced. That is a major problem because it goes against a fundamental principle of capitalism... Meaning, instead of the best company winning, it is rather the company that has
IP will never go away. (Score:3, Insightful)
Re:IP will never go away. (Score:5, Insightful)
As with gas engines and global warming, if we find that copyright protection for recorded performance amounts to pollution of the law and of the public domain, there is every reason to do away with that aspect of copyright protection.
Copyright is not a fundamental human right. Copyright is a deal: "I'll publish, if the governments protects publications." Unlike natural rights, copyright is a created right, a bargain between governments and publishers, and the bargain can be partially or fully revoked, or the term shortened. There is nothing immoral about revoking or curtailing copyright protection, especially for a relative novelty like recorded performances. It is a decision based on utility.
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To say that copyright protection for recorded performances is permanent is like saying gasoline engines are forever going to power cars. There was a time before gas engines, and copyright recorded performances, and there will be a time that comes after.
Gasoline engines are going to forever power cars. The oil industry will see to it that no alternative fuels will ever gain mainstream support, or at least no alternative fuels that do not rely on oil in some way.
Copyright is not a fundamental human right. Copyright is a deal: "I'll publish, if the governments protects publications." Unlike natural rights, copyright is a created right, a bargain between governments and publishers, and the bargain can be partially or fully revoked, or the term shortened. There is nothing immoral about revoking or curtailing copyright protection, especially for a relative novelty like recorded performances. It is a decision based on utility.
Tell that to Sonny Bono disciples.
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Now that Canola oil is cheaper than diesel I use half andf half if nothing else to reduced demand on diesel.
It's nice to see that a 25 yr old jalopy Merdeces oilburner has gone from on average $500 to $5000 in 6 months.
Hope it holds up as well for the next half million miles.
RS
83 300SD
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Gasoline engines are going to forever power cars. The oil industry will see to it that no alternative fuels will ever gain mainstream support, or at least no alternative fuels that do not rely on oil in some way.
Except that there is a finite supply of gasoline, and that supply will be exhausted well before the usefulness of cars goes away. it may (or may not) be within our own lifetimes, but from a historical timescale, oil won't last much longer (in 250 years the wells will be bone dry). The oil companies will never be able to ensure that we're still relying on oil when we are simply OUT OF OIL. At that time those gas companies better quickly start pushing some other fuel, otherwise the local power plant is go
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Internet Protocol
International Paper (hmmm. down -26 today, maybe I'll buy a few shares).
Interesting People
Oh Wait! TFA is talking about Intellectual Property! Which in this thread refers to creations of the mind.
IP can be inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.
Intellectual property is divided into two categories:
Industrial property, which includes inventions (patents), trademarks,
Intellectual Property Tax (Score:5, Insightful)
When such a court claim is made on infringement of this intellectual property by a business located within the tax jurisdiction, just take the claimed infringement value and multiply it by the prevailing property tax rate and invoice said property holder. (Be sure to tack on interest and penalties for back taxes.)
If property holder doesn't pay in 90 days, start lien and foreclosure proceedings.
To recover the costs of this collection, auction off this IP. If there is no starting bid (1% of value), property becomes public domain.
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For all the years I've been following IP news, this is something I never really stopped to think about. If IP is worth so damn much, why is it that companies such as RIAA constituent companies trumpet claims about how much damages they suffered, yet basically pay no tax on the IP to the government? Sure, CDs are taxed, distribution is taxed, but if something is worth so much, why not tax it? Capital gains tax? Every year it seems like these lawsuits get bigger and bigger, so IP must be growing in value, and
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The tax code actually does a reasonable job answering both of these questions. If you look at the tax code, IP is taxed like all other intangible things. Licenses are taxed upon the income received by the license. Assignments (sale) are taxed much like other capital. Court judgments
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This is partly what I was getting at. If a CD costs $12, and we break it down to a song costing $1, then whatever the RIAA lawyers suggest the damages are in a lawsuit should apply to the taxes on that original purchase. If they inflate its value such that a song is worth $10, then they need to cough up ten times the tax on the original CDs. Without charging at the music store. I say they give pay cuts and layoffs to the CEOs and other overpaid executives who work at the RIAA's member companies to afford th
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Companies do pay taxes on Linux services for which they charge money. I am fairly certain Red Hat pays taxes, for example. However I think I know what you are trying to get me to say, but no, my Linux box is not worthless...
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Applying your formula would always result in $0.
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If IP is so valuable, then tax it. I'm all for that.
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I pay an annual property tax on my home but I don't pay an annual property tax on the paper clips on my desk. I pay a one-time sales tax when I purchase those items. And if that's what you're talking about then I'll point out that when I buy a copy of a CD or a book I also pay sales tax on that item. So in that sense "IP" is already taxed.
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Re:Intellectual Property Tax (Score:4, Interesting)
Tax ALL intellectual property based on it's value. All OSS and FSF IP has zero tax as it is given away freely.
Holy crap you hit the nail on the head in such an elegant way none of them will see it coming.
You found a solution to All if the Intellectual Property messes by giving the politicians something to tax. Holy crap I'm going to start talking about this to the right people to see if I can get it rolling in my state.
This is in fact the answer. As soon as governments start taking tax on IP these idiots at the RIAA, MPAA and BSA will stand back and go... wooooah. Wait a minute.
Base the TAX they get on how much they sued for infringement. That would make it that record companies need to ante up billions in taxes.
BRILLIANT!
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No. Here's an analogy:
Unsold cars at a car dealership are "property" too, but the dealership does not get taxed on this "property" if someone steals one of them.
Now, the problem with this analogy (as I'm sure would have been pointed out by 10 different people and modded +5 Insightful) is that with Intellectual Property, the original property owner is not deprived of anything if someone steals the IP, because IP costs $0 to replicate. Unlike a car.
However, the analogy isn't totally worthless. The point
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First, the taxing authority you propose may not be that of the IP owners. A defendant can bring suit in their own jurisdiction EVEN if they're the bad actors--it's called declaratory judgment.
Second, the awards in IP cases aren't proportional to the ACTUAL value of the ip on the open market. That's not new; and it was never a proxy for that value. Excluding punitive damages (for willfulness), awards in patent cases are usually for a "reasonable royalty." But a reasonable
The death of IP (Score:3, Interesting)
I'm not a software pirate. I use FOSS.
I'm not a media pirate. I listen to CC stuff.
I'm not an encyclopedia pirate. I use wikipedia.
When all is open, patents are basically unenforceable. You can own an implementation via copyright, but you can't own an idea.
I won't drive anyone out of business pirating their stuff. I'll drive them out of business by obsoleting it.
~ethana2 (too lazy to login)
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When all is open, patents are basically unenforceable.
Open is no protection against patent prosecution. It's easy to come up with an original design that nonetheless infringes on someone's patent. Patents don't quite protect ideas, but close.Patent reform idea (Score:2, Interesting)
The Problem about Getting Rid of Patents (Score:2)
But if patents didn't exist the inventor has absolutely no reason to do so. The longer and more darkly he can hide this information, or tie up that information in legal ribbons like contracts, EULAs, licenses, NDAs, the more money he will be able to
Incentive (Score:4, Insightful)
Look at all the philanthropic jobs that don't pay and the NPOs.
Create publicly funded labs. Create open lab diaries and open development. Make it an honorable job. Applications will flood in.
We don't need anymore pharmcos and anymore garden fountain commercials.
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Re:It's some Ayn Rand follower (Score:4, Insightful)
No, Stephen Kinsella is not a follower of Ayn Rand. In fact, I think he gets a great deal of pleasure out of mocking them:
http://blog.mises.org/archives/004065.asp [mises.org]
http://www.lewrockwell.com/blog/lewrw/archives/010779.html [lewrockwell.com]
You realize that everyone owns property.... (Score:3, Insightful)
You call that elitist? You think that's a bad thing? What do you support?
Forcing people to say things they don't agree with? Forcing them to write things they would prefer not to write? Mandatory loyalty oaths?