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Deconstructing Stupidity - Why is IP Policy Bad? 384

An anonymous reader writes "There is a good attempt on the Financial Times site by James Boyle to explain why intellectual property policy making is so bad. From the article: 'These are the ground rules of the information society. Mistakes hurt us.... Why are we making them? To some the answer is obvious: corporate capture of the decision making process. This is a nicely cynical conclusion. But wait. There are economic interests on both sides. The film and music industries are tiny compared to the consumer electronics industry.'"
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Deconstructing Stupidity - Why is IP Policy Bad?

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  • Money (Score:5, Interesting)

    by chiapetofborg ( 726868 ) on Friday April 22, 2005 @12:17PM (#12314131) Homepage
    I think it partially has to do with the money. I was working at a educational instution, and I created a very complicated system to keep track of a lot of things, and a couple of the things we did were cool, and we were thinking about patenting it, but the cost associated with filing a patent was too expensive. If we had a really broad patent where we could patent the entire world then it would have been worth it. In my talkings with one IP laywer he basically said he works under the following mindset: Ask for the world in your patent. They will narrow it for you saying what you can and can't have. If they grant your patent on the first time it wasn't broad enough, and you aren't worth your salt as a patent lawyer. That's the way patent laywers think these days, they try to patent the whole world. I think its a flaw of the system, becuase these broad ones get passed with way too much. More than they deserve.
  • by flyingsquid ( 813711 ) on Friday April 22, 2005 @12:21PM (#12314167)
    I recently read a book about "emergence": the idea that simple rules of interaction between unintelligent subcomponents of a system can lead to emergent behavior which is surprisingly complex and intelligent. In short, the whole is more than the sum of its parts; for instance, ant colonies, where the behavior of the colony is more intelligent than any given ant.

    It then occurred to me that many groups and institutions exhibit the reverse of emergence: you have complex, smart people making up your system, but when you get them together you get stupid decisions. In this case, the whole is less than the sum of its parts, sometimes less intelligent than any one individual. The obvious name for this phenomenon is "demergence".

  • by Mysterian81 ( 823957 ) on Friday April 22, 2005 @12:23PM (#12314180)
    I think one reason that electronics companies don't stand up to the music and motion picture industries is that the latter have unified organizations to act behind. To my knowledge, electronics makers are much more splintered than the entertainment industry. If the like of Sony, Panasonic, and others would band behind a single name, I think we would see more of a spine behind their agenda.
  • by Anonymous Coward on Friday April 22, 2005 @12:23PM (#12314184)
    If the copyright holder isn't making use of a property, there should be a process to turn the title over to public domain. Perhaps a set fee per year of copyright, like a lease.
  • by 0x461FAB0BD7D2 ( 812236 ) on Friday April 22, 2005 @12:24PM (#12314194) Journal
    And ironically, uses Netscape Enterprise Server.

    This is akin to IE not working with IIS.
  • by Anonymous Coward on Friday April 22, 2005 @12:28PM (#12314232)
    Expiration 50 years from the date of publication is very generous, it gives firms a heck of a long period over which to depreciate their assets.

    Then every month we'd be rolling in new properties into the public domain. Old Sinatra recordings and early rock 'n roll would be on tap this year, for instance.

    Most of the "great American songbook" tunes from old Broadway shows should already be in the public domain IMO. If their publishers haven't cashed out many times over, enough to pay for dozens of duds as well as the original hits, they don't deserve any more money anyway.

  • Part of the problem (Score:5, Interesting)

    by Nf1nk ( 443791 ) <`moc.oohay' `ta' `kn1fn'> on Friday April 22, 2005 @12:29PM (#12314249) Homepage
    Part of the problem is that IP is currently an untaxable asset. It is something that you can have tons of in inventory, but its not bad in the same way that having two years worth of wigets in inventory is. This leads to hoarding, some companyexist only to hoard and licence out bits of IP.
    We Need to create an Intellectual Property Tax.
    This will keep corpoartions from hoarding and speed the flow of material into the public domain. If $Member-RIAA thinks $Boy-Band latest album is worht $50 mil let em pay 1% for the goverments protection. Since the IP cartels want real protection for their "assets" let them pay for it in the same way you would have to pay for real assets
  • by 91degrees ( 207121 ) on Friday April 22, 2005 @12:29PM (#12314255) Journal
    Some of what he says makes sense, but at one point he appears to be drawing a false conclusion.

    He said: "The point was made by an exchange inside the Committee that shaped Europe's ill-starred Database Directive. It was observed that the US, with no significant property rights over unoriginal compilations of data, had a much larger database industry than Europe which already had significant "sweat of the brow" protection in some countries."

    But there's more to it than copyright. It's very difficult to access a corporate database to copy it, so copy protection is quite strong with or without legal copyright protection. Something that is more likely to have hindered the European database industry is stricter data protection laws. When you have to register, and are not allowed to sell information to anyone and everyone without exlicit permission, the industry sector is going to be a lot slower. This is simply a tradeoff between econmic growth and consumer protection.
  • by Shaper_pmp ( 825142 ) on Friday April 22, 2005 @12:32PM (#12314278)
    Given the overwhelming happiness of naive consumers to use electronics with (even highly restrictive) DRM built-in (Napster-2-Go, iTunes, any non-native-MP3 digital music player), where is the pressure against strong IP laws going to come from?

    Strong IP laws allow electronics manufacturers to make it harder for third parties to interoperate with their kit, thereby increasing vendor lock-in (and hence, their profits - iTunes makes a loss, iPod rakes in money hand-over-fist).

    Weak IP means they can't stop people reverse-engineering their protocols and products and people can release cheap but interoperable knock-offs, which undercut their market and prevent lock-in.

    Were I a consumer electronics manufacturer, I'd be lining up behind strong IP as far as I could - it would be all pro and no con, as far as I could see.
  • It's not policy (Score:5, Interesting)

    by jafac ( 1449 ) on Friday April 22, 2005 @12:34PM (#12314303) Homepage
    The reason it's bad is that it's being driven by ideology, not pragmatism.

    Ideology says: "If we don't give the corporations what their lobbyists want, which is a guaranteed percentage of ROI for R&D dollars spent, all innovation will grind to a halt!"

    Pragmatism says: ". . . to promote the useful arts and sciences. . . for a limited time. . ." (actually, that's what the Constitution says).

    There's still a place for patent and copyright law, but the effect of today's laws is to remove the risk from R&D spending for large, established corporations, and eliminate competition from the marketplace. It has a detrimental effect, overall, on innovation, because it creates unnecessarily high barriers to entry in many markets and industries today.

    This is an area of policy where lawmakers really need to tear everything down, and go back to what the Constitution said about Copyright, and what the Founding Fathers intended. Otherwise, the Free Market will make us it's bitch, and overseas competitors with less draconian IP law will supplant ours (already happening in some areas).
  • by Baldrson ( 78598 ) * on Friday April 22, 2005 @12:35PM (#12314314) Homepage Journal
    Extending the principle of true cost pricing [] to maintaining the social construct [] of property rights, one can see that the taxation of anything but property rights themselves is an inappropriate basis for government as the only fundmental job of government, outside of defending life and limb, is protection of property rights. While one can make an argument for taxing right to life and limb as well it is more difficult due to the determination that slavery, and hence ownership of human capital, is not consistent with the social construct of property rights.

    It's ironic that the only asset the Feds charge a protection fee for is patent maintanence. If there were one asset that should be exempt from such protection fees it is inventor-owned/assigned patents since by putting capital in the hands of the inventors themselves you are far more likely to create the sort of society that can sustain other sorts of ownership rights.

    What we do instead is subsidize the protection of property rights of acquisitors -- with the dire consequences now observable in the technology creation field.

  • by ShieldW0lf ( 601553 ) on Friday April 22, 2005 @12:38PM (#12314338) Journal
    Let me be clear. IP is a good thing.

    Just lost me. IP is a tax on people who use an idea to benefit the person who first brought it to public attention. It is useful only insomuch as it encourages the USE of new and better ideas. Discovering an idea, having an idea, these are not a benefit to society in and of themselves. The benefit of a good idea is measured in how broadly it is utilized compared to conflicting inferior ideas. Having the idea in the first place is a prerequisite, but only that.

    So why is it a given that IP is good? Creating an inclination to have ideas by creating a disinclination to use them is NOT the open-shut case that the author or anyone else makes it out to be.

    If we're really interesting in furthering society, we should be setting up a system that creates motivation to create new ideas and ALSO creates motivation to USE those ideas. How that should work is open to debate, but the fundamental premise is not. It is an obvious and incontestable fact that motivating people not to use good ideas hurts society to some degree or another. If a mechanism that has that as an effect is considered at all, it should be the last option that is considered when all others have been exhausted.

    Can any intelligent human being really deny this?
  • Re:choice quote: (Score:3, Interesting)

    by tomhudson ( 43916 ) <barbara@hudson.barbara-hudson@com> on Friday April 22, 2005 @12:40PM (#12314361) Journal
    Good quote - actually made me RTFA.

    But what's going to happen when software is capable of analysing a writer's style, etc., and can grind out books long after the original author is dead?

    Obviously, the original author didn't write them.

  • by ReverendHoss ( 677044 ) on Friday April 22, 2005 @12:47PM (#12314429)
    "Were I a consumer electronics manufacturer, I'd be lining up behind strong IP as far as I could - it would be all pro and no con, as far as I could see."

    The 'pro' you list is definitely a big one, but it only works if your device is the big cheese in the marketplace. In your above example, Sony may very well want a little less IP protection for Apple. iPod's market domination is a 'con'.

    The reduction in IP protection would mean anyone could ATTEMPT to compete with the iPod, and the product that gave the best balance of price and quality would emerge the victor.

    Well, okay, perhaps the most trendy and well marketed.
  • IP TAX, Hmmmm (Score:2, Interesting)

    by protolith ( 619345 ) on Friday April 22, 2005 @12:48PM (#12314440)
    As Much as I don't like the idea of a new tax,

    This is actually a really good idea. If a patent has future promise, it is worth it to the holder to pay a yearly (or regular) fee to hold the patent (this is how mining claims are managed). The Shit or get off the pot appraoch to a patent would help.

    If a patent no longer provides income , or the income is less than the regular fee, it is no longer economically viable to hold on to the patent, then there is a chance for a final cash in, eithor sell to an interested party that might have a good alternative use, or use part of the money paind into the fees as a buyout to turn the patent over to the public domain.
  • by Anonymous Coward on Friday April 22, 2005 @12:57PM (#12314538)
    Because it's going to slow down technological advances, giving us time to work on our society. Fewer fusion power plants, more riding bikes and planting trees.

    More parenting, fewer gadgets. We need a good score of years, just working on American society. We need to get the ghettos cleaned up, we need to bus kids from LA to Montana for their primary schooling (K-12). We need yearlong school sessions, with a rotating schedule of instructors.

    And with IP stagnating tech advancements, it's really the best way to go. It's not a nuclear bomb and California sliding off into the ocean, it's a very gradual reduction. We're not stopping tech, we're just slowing it down.

    Think of it as a tech freeze. Just like a spending freeze, but without Congress passing a new law that allows deficit spending exceptions for their state pet projects.
  • Re:Key questions. (Score:5, Interesting)

    by sundiver90 ( 695540 ) on Friday April 22, 2005 @01:00PM (#12314582)
    I think that as a community we should provide answers to key questions as well but I am interested in data-centric answers:

    1) Do patents stiffle innovation? That's the main argument pro/con. The answer HAS to be an economic one, ie an econometric study or something similar for me believe it. I hear too much rhetoric and NO hard data from either side.
    The U.S. Constitution, Article I. Sec. 8 believes protecting the right of inventors will encourage innovation. Our community keeps saying 'well, in software that's different, the framers never had software patents in mind'. We have to show numbers again for this. Software was once NOT patentable so the data is there.

    2) What is a 'good' length of time for copyrights? Yes, balancing the rights of authors to their works and the right of the public to access those works free of charge for fair use or after a 'reasonable' length of time makes sense. The issue of what constitutes 'fair use' and what is 'reasonable time' should once again be backed up with data that shows that under a given copyright system 1) authors are being remunerated fairly, 2) the creation of new works are not being unduly stiffled and 3) the public is not being hampered in their fair usage. My nirvana would be to run a copyright simulation engine that takes in different copyright models (ie times of expiration, usage scenarios, etc.) and outputs metrics such as income from works, amount of fair use, increase/decrease in works produced, etc.

    Anybody has any ideas on how to go about getting hard data answers to these issues or am I being naive and it is not possible to get answers?
  • The first time Joe Sixpack realizes how difficult it is to make a mix tape of his favorite Toby Keith songs for his sweetie

    Not difficult at all. Just run sound card output to tape deck line input. Ye cannae stop the analog hole.

  • Re:Money (Score:2, Interesting)

    by taffeta ( 878192 ) on Friday April 22, 2005 @02:20PM (#12315386)
    Re: karma, I've been lurking here a long time, but this is my first comment / post, which may explain the 0 karma. Thanks for reading and replying in spite of that!

    Re: The issue of financial gain -- if the system provided no financial gain, then what was the point of trying to patent it? I'm not trying at all to attack, but you need to consider what are the goals of the patent system and, seperately, how people view it. If you don't plan to financially gain from an invention, then what's the point of closing off access to others? There's of course an issue of a merit badge or pride in having a patent, but that's not the patent system's primary purpose. The patent system is predicated on the assumption (correct or not) that people won't publish the results of their creativity without having control over the financial benefits accruing from it.

    If you want a merit badge, there are many other ways to get that: submit the system to ACM or some industry group for an award, open-source it and gain reputation, etc. But locking people out of the improvement without planning on doing something with it yourself is, arguably, a degenerate use of the patent system:

    "To enjoy a thing exclusively is commonly to exclude yourself from the true enjoyment of it." -- Thoreau, "Walking"
  • by sac13 ( 870194 ) on Friday April 22, 2005 @02:26PM (#12315493)
    The way I see it, there are two seperate arguments in the IP debate.

    First, there are the technological patents. I believe that if a company or person invests its resources in the development of a technology solution, then it has the right to enjoy the benefits of that development how it sees fit (for a reasonable period of time - we have to allow for truly innovative ideas that change the world and become ingrained in our culture(s)). That is a necessary component of innovation. People need that incentive to work toward something. Some people are looking for financial gain (Microsoft). Other people just want recognition (FOSS developers - although some get financial gain also).

    The problem arises when patents are granted for obfuscated ideas. The operative term in my argument for protecting someones technological solution is SOLUTION. Abstract ideas that anyone could come up with if they only had a high enough grade of pot don't qualify as solutions. The patent office should not be awarding patents for those... but they are. That's the problem with that side of the IP debate.

    The other side of the debate is creative content and copyrights. With this side, I believe that the content creator has the right to protect their creation and distribute/use/sell/whatever any way that they wish. However, today, most of the issue is with copyrights that aren't owned by the creator. Most artists sign over the copyright of their recordings to the record company in exchange for the power the record company suposedly has to make the artist more money.

    There's nothing wrong with that, except, as TFA points out, the rights are retained long after the production is no longer commercially viable. So, the productions end up not being accessible to the public because it would actually cost the record company money to release the recordings or publisher to print a book for sale. So, these companies sit on the work and deny the public usufruct just because they can't make money on it.

    Today, most recordings are only commercially viable for a few years. Very few, such as Pink Floyd's Dark Side of the Moon, continue to sell and be produced for longer than 5 years. Copyright law should provide that if the product is not commercially viable, then the copyright should be released to the original creator. If the creator doesn't want to make it available, that's their perogative. However, most artists I know would rather have their works enjoyed than sit on them. I believe that that would resolve the copyright issue.
  • by MysteriousPreacher ( 702266 ) on Friday April 22, 2005 @02:41PM (#12315755) Journal
    I wouldn't call the iTunes DRM highly restrictive or myself naive for using it.

    I can listen to my music in any any Mac application that can play QuickTime files. I can listen on my iPods. I can copy the music to up to 4 other machines. If I want a CD or a DRM free version of the song, I just burn it to CD.

    The DRM does restrict the use of the files but personally, the convenience and cost makes up for this.

    The only things I can't do would be to give copies to others - something that you can't do with copyrighted MP3s anyway if you're going to respect copyright.

    The only downside I see is that if Apple were to go out of business or kill the music store, I would have problems authorising machines.
  • Here's a solution (Score:2, Interesting)

    by Barterer ( 878209 ) on Friday April 22, 2005 @02:43PM (#12315781)
    Here's a solution to the problem of frivolous patents or submarine patents. The patent holder, in order to maintain the patent, should report the yearly royalties and profits due to the patent. Then, provided the time limit (which BTW should be 40-50 years regardless of the lifetime of the author or selling/licensing of the patent) has not been exceeded, the patent is maintained until revenue from it falls below 5% of the peak year's value. To avoid frivolous patents that the holder never uses, a token revenue of say $10,000 could be assigned for the patent's 5th year. Why wait 5 years to do this? To give legitimate patent owners time to develop and begin selling their idea. So all frivolous patents would expire in the 6th year, yet inventors (or their heirs) of all useful patents would enjoy 40-50 years of income. But if the level of income becomes trivial sooner than that, joe public could then use the idea without fear of legal repercussions. This idea could also apply to copyrights.
  • by Pecisk ( 688001 ) on Friday April 22, 2005 @03:32PM (#12316421)
    No, I don't agree with you.

    Information and ideas are only worth any dime WHEN you are using into your products, services, etc. If you will be smart enough to create idea, you will be smart enought to get till the end. I, as a man with lot of very good ideas, can say, that idea by itself is NOTHING. Repeat after me, NOTHING. If I have very good melody and idea how to bring it to my fans and listeners, I just record it, sing it - and copyright law covers it. I don't care that someone listen it and get inspired too - I happy, because I have done something it was worth to do it.

    And sorry, If you feel not enough compensated, well, then go, find another work. It is how intelectual market works - there will be always influences, even citation, ok, copycats should not be allowed, but other way...

    I just see it all not as unjustice, but some people's greed, that's all.
  • Re:choice quote: (Score:3, Interesting)

    by fyngyrz ( 762201 ) on Friday April 22, 2005 @05:29PM (#12317923) Homepage Journal
    I have in fact sent something very much resembling that to congress (well, to my congressperson and a couple of the more appropriate congressclatches.)

    However, we are not publishers, we are a literary agency, and as such, we're not a very important part of the food chain as far as congress is concerned. They listen where the money is concentrated; and that is at/to the publishing (books) or production (movies, video) occurs.

    In order to have a serious effect on congress, it takes money and influence. I cannot bring enough of either to bear to be taken seriously.

    Let me emphasize again that while the authors are often the focus of discussion of copyright issues, it is not the authors that primarily benefit -- it is the production level operations, publishers and movie production companies. And they, naturally enough, are the ones exerting influence. Lots of it, and quite effectively. Because they have oodles and oodles of money and power to flex.

I THINK MAN INVENTED THE CAR by instinct. -- Jack Handley, The New Mexican, 1988.