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[george wowk]

Article on the importance of intellectual property protection

http://www.foxnews.com/story/0,2933,143933,00.html

[shaw_1962]

one of the first facts in the article rings strange

"Apple probably would not have launched the product in the first place. And even if they did, they certainly would not have developed the iPod mini after the first version had been ripped off by counterfeiters."

Were there ever ipod counterfeits?  I have been in Shanghai for quite a while and never saw any.  I thought the technology was the limitation on copying this item not the IP protection.

"Congress did the right thing last year by allowing a fee increase for applications — something those who were paying the fees supported enthusiastically."  

That sounds strange also, is it true?

[JimIvey]

I think what they're suggesting about the iPod is that, without strong patent protection, it would have been ripped off and any follow-on products would not have been attempted.  It's a bit far-reaching, but I don't see it as a completely indefensible statement.  It's pure speculation and conjecture, but what do you expect from Fox News?

As for the major overhaul of the Patent and Trademark Office, I believe most wanted something dramatic done.  I'm not sure they wanted all the fees doubled, but most wanted at least an end to fee-diversion -- skimming PTO fees for helping to balance the federal budget.

You have to remember the source here -- Fox News is heavily invested in making the current administration and the current Congress look really good.  Did fee increases of a couple of months ago really spur huge attendance at CES?  Hardly.  That change in the law will take years to have any meaningful effect in IP which could possiblity affect the marketplace.  Most of the items at CES were probably conceived years ago -- many during the prior administration.

However, does that undercut the general theme of the article, i.e., that IP is important?  I don't think so.  I think IP is a good thing, on balance.  I'm not sure I agree with others here that more IP protection is always better.  And, I think some of the implicit causal links to the current administration and the current Congress intimated by the article are laugable.  

Well, let me re-phrase that.  Those implicit causal links (a cowardly way to make those points, if you ask me -- mean what you say and say what you mean) are so poorly supported with anything resembling a fact that those statements should be taken as opinion, not news.  But, then again, we're talking about Fox "News."  Remember, this organization once asserted in court that "fair and balanced" was so clearly not descriptive of their shows that it could be used as a trademark.

But it's still good to see IP making news and the article has provided some interesting thoughts and discussion here.

Thanks for the post!

Regards.

[eric stasik]

Mr. Ivey, your comments are always interesting. I don't have a TV so I can't comment on Fox News, but I am suspect of anyone who quotes Richard Stallman:

"There has to be a minimum freedom that everyone must always have for any kind of written or artistic work," he said in a recent interview in Asia. "And that is the freedom to non-commercially distribute exact copies."

It is fair to call Stallman's theology "cyber socialism," but his is a minority view. Most people familar with VCRs and cassette tapes probably agree with Stallman that the ability to make copies for personal use is a matter of "freedom." But I also think think most people understand that when the *non-commercial* distrbution of *exact* copies becomes a commercially significant that this is no longer a matter of "freedom," but piracy.

Regards,

eric stasik

[Isaac]

Mr Ivey, I like your take on the "Fair and balanced" trademark.

As for the article, it's pretty clear that the article wasn't
intended to present a nuanced look at intellectual property
rights.  While I agree with the article's principle that
strong intellectual property are essential, I don't believe
that every situation where a balance between IP rights and
other principles (like the first amendment as an example)
can be decided by simply sticking to the IP rights are
essential position.

I found the the trotting out of the Stallman straw man particular
amusing.  Sure Stallman's wrong about a bunch of stuff, but
is his position particularly relevant in this article?

[JimIvey]

Thanks, Messrs. Stasik and Clark, for your comments.

I also noted the reference to Richard Stallman.  I think the "straw man" comment is accurate and warranted.  Notice the use of the word, "socialism", a cold-war hot-button that, for some, can only be uttered with a sneer.  

Again, it was weak on fact and/or rationale and strong on value-loaded undertones and rhetoric and hyperbole -- "seems to feel...."  Not news.  And, I suspect the quote of Stallman's was taken out of context.  It certainly doesn't appear to be self-contained and complete.

The quote appears to suggest Stallman is advocating free distribution of all copyrighted works.  I suspect the quote is really in the context of open source software and the difficulty posed by patents -- the fact that one cannot simply distribute one's own original work for free because patents don't allow an independent creation defense.  I'm not taking that view -- just suggesting that the quote was likely much more reasonable that it seems in the article.

Personally, I haven't read or heard Richard Stallman and couldn't tell you what his theories on intellectual property really are.  But if you're going to criticize those views, then criticize (i.e., rationally critique) them.  Here, we have a mere suggestion that Stallman is an unemployed ("used to be at MIT" and no other mention of present positions) looney who "seems to feel" that anarchy and mass hysteria are good things.

Again, people are free to say such things.  But, be a mensch and say it -- don't be a little wussy ideologue and suggest something in a way that preserves your plausible deniability.

To respond to Mr. Clark's question, is reference to Stallman even relevant?  Well, if the article were even moderately well-written, we would be able to determine that.  The quote and belittling of Stallman appears to focus on copyright issues while most of the remainder of the article appears to focus on patent issues.  One could say that the article is about all forms of IP.  Or one could say it's not since it doesn't make much effort to discuss trademarks or trade secrets or to distinguish the various forms of IP.

I suspect it's relevant, but can't say for sure.  If I'm right about the quote, that it's referring to the effect of patents on open source software, I'd say it's relevant but that it's relevance was not established by the author.

My best guess is that the logic of the author, assuming there was some, went something like this:  "Stallman doesn't like patents but he's a whackjob -- just look at his position on copyrights."  But I really don't think the fully developed path from why Stallman's views are not persuasive ever made it on to paper.

So, in short, I agree that the Stallman reference sort of stood out as out of place in the article.

Regards.

[DavidMc]

One of the difficulties of the "infringement if distributed only for profit" position is the difficulty of proving profits in black market sales, which are often run by organized crime.  This is one of the difficulties in China.  China requires proof of pirate profits to determine damages.  If they are not proven, but copying is, there is a statutory maximum the court may award, which often is less than the cost of attorney fees to bring the suit in the first place.

Stallman most likely was mentioned because he founded the Free Software Foundation, the original source of "free" software and the largest contributor to the Linux operating system.  "Free" software is often used interchangibly with "open source," although Stallman firmly objects.  "Open source" has a more practical and business friendly approach.

Stallman is generally hailed as a brilliant programmer, though philosphically on the fringe of the free/open software movement.  You can find info on stallman at either http://www.stallman.org or http://www.gnu.org . Contrast with Eric Raymond, the most noteworthy spokesperson for the Open Source Initiative, available at http://www.catb.org/~esr/ or http://www.opensource.org .

Most of the hardware tech industry accepts and embraces open source, as do many foreign governments.  However, Microsoft shares the same views as Prendergast and has been in what some journalists have labelled a "moral holy war," which explains the unfavorable treatment of Stallman.  

I  Prendergast makes a significant mistake in drawing a comparison between software and music.  The EU is holding up patent legislation precisely to protect open source software.  Music is a much simpler case, because of a lack of utility & hence patent protection.  With the DMCA, you can't remove protections to see proprietary code, and in patent cases courts have referred to programmers as mere scribes.  Neither the patent application, nor the copyright app. requires full disclosure of the program code, and the public never gains the benefit.  

In music, the problem is more behavioral.  People trade music like changing channels on the radio or TV, so it is difficult for end-users to see the harm.  It's practically impossible to stop P2P sharing, without removing anonymity.  But that sort of goes against free speech.  If it's the artists that need more money, or incentive to sing, then maybe they should be allowed to collect from BMI.  However, if the cost of music goes up, then piracy is likely to as well.  We'll have to see what the S. Ct. says when it hears MGM v. Grokster.

That IP protections help or hurt incentives to create, is a disputable matter.  See Fritz Machlup, An Economic Review of the Patent System, at http://lawwww.cwru.edu/faculty/nard/ppl/patent_docs/MachlupReport1.pdf
Machlup says there is no conclusive evidence that patent systems stimulate innovation, but there is no conclusive evidence the other way either.  So he concludes if you have a system, then stay with it, but if you don't have one, there is no clear reason for it.  

Parallel development of Windows & Linux attest to that supports that position and to the best of my knowledge, no one has disproved Machlup.  Special industries may call for protections to do R&D like pharma, and to the extent IPRs protect them, they can carry those out.  But the question then becomes, how much protection?  And also, why are we protecting them?  Initial protections were time barred to prevent monopolies and to allow the public to benefit from the protections.  There are strong arguments that is no longer the case.  Corporate protections have been removed from international trade, and IPRs have been the substitute insulation.  

Software is clearly different from the hardware that runs it, because of the dual protections from patent and copyright.  Music, video and photographic communities are only similar with respect to copying of software object code.  Neither of these, are substantially related to the integrity of traditional, uncontroversial hardware patents that Prendergast applauds.  And I don't think Stallman has any problem with traditional hardware patents either.

Process patents are a different story...    

[JimIvey]

That's a good summary of the lay of the land with respect to software and it's protection currently.  I'll just note a couple of things.

"Free" vs. "open source" -- if I'm not mistaken, FSF advocates the ability to make software free from control of anyone rather than free of cost.  The way I've heard it expressed is "Free as in speech, not free as in beer."  I've always thought that would be appropriate on the back of a sailboat....  ;-)

You're right that there are parallels between software and music/movies/etc.  And, you noted that patents apply to the former and not so much to the latter.  The primary reason for the resistance to software patents -- as far as I can tell -- is that patents don't allow for an independent creation defense and therefore make it a practical impossibility to produce "free" (as in speech) software.  There's generally no similar problem with music/movies/etc.

The other distinction between software and music is that there doesn't seem to be a large movement of people producing music for free (as in beer) distribution. Well, maybe there is and I just haven't heard about it yet.  But, if there were, I don't think there would be much argument that artists could distribute their works freely if they chose to do so, although the RIAA and MPAA would really prefer that they weren't.  I see P2P as a disruptive technology to the oligopoly of music producers over the distribution of music.  The truth of the matter is that they're not needed anymore.

Lastly, I note the distinction between machine patents and process patents.  I don't really understand the distinction -- well, I know what they are, but I don't understand while one type is acceptable and the other isn't.

First, process patents have been around long before software and have served a useful purpose.  As you noted, the pharmaceutical industry is the posterchild for strong patent protection -- huge R&D investments are required to produce drugs that are sometimes widely held as absolutely essential to humanity.  I think it's a pretty safe assumption that much of the drugs we have today wouldn't exist without strong patent protect for that industry.  And, my understanding is that process patents play a huge role in that industry.

The other aspect of the machine/process distinction is that the two are somewhat blurred in computer technology.  Many of the graphics routines I worked on 20 years ago or so are now included in today's graphics cards -- not the same exact routines, but the types of routines.  My understanding is that there's a fairly clear progression of software into firmware into hardware.  Although maybe the trend is more along the lines of RISC processors in the 1980s -- simple instruction sets made lightning fast, thus suggesting away from the software firmware hardware migration.

Furthermore, many innovations in digital technology can be implemented in either hardware or software or a combination of the two.  I think embedded systems have many examples of each category.  

Lastly, it's not always clear from the patent application or claim(s) whether the claim covers only software or hardware along with some software embodiments.  How does one implement such a legal system?  If I have a patent on my new computer hardware design and it turns out someone else can implement an alternative, covered by my claim, in software on a conventional computer, is my patent now invalid because it covers a software implementation?  Or do we just not allow software implementations to infringe?  If the latter, that could render my patent near worthless since it would have to compete with software alternatives.  

I just don't think software and hardware are so easily distinguished.

Regards.