I'm not against patents and copyrights.

No. Really. I don't think we should do away with patents and copyrights. In spite of my rants about how bad the system is these days.

Mind you, the US Constitution nowhere says either word. (Much less that profane oxymoron, "intellectual property", but that's another several rants that I haven't yet really gotten quite right.)

The US Constitution says (Article I, Section 8),

The Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

I could talk about the theoretically balancing provisions, but now I want to focus on the securing of those rights.

If you don't have right to your own stuff, it's hard to do anything good with it. And that's what the promotion of the arts and sciences is all about, doing good things with our creations. That's what the great experiment in Freedom was all about, making a society where people could be free to do good things, and not just to fight each other.

Now, I'm also all for sharing. I'm not interested in forced sharing. Forced sharing is the entire problem with socialism and communism. Force takes the soul and the meaning and everything that is good out of sharing. If a particular people have to be forced to share, there's not much hope for their being able to continue very long as a country or people.

No, I don't believe in forced sharing.

Patents and copyrights are one way of sharing.

Now, each person's mind is his or her own.

And each person's backyard, to the extent that he or she does not engage in activities that poison the environment or similarly cause major problems for his or her neighbors, should be his or her own.

If that is not the case, if there's no private place to do things in, there is no way that an inventor or author can have any rights to their works, there are no rights to be secured. This is the balance of freedom, the one that is often explained as, "Your rights to swing your fist can extend to just before it contacts my nose, but does not extend to contact." (It's not a perfect analogy, but it does help establish a sense of bounds, and what those bounds should look like.)

The market is something we all share. It's an artifact of the community. Traditionally, this is where control over inventions and writings has made sense. The choice to allow them on the market, the choice to remove them from the market, the right to ask for a profit in exchange for sharing, etc. And the right to let other people gain something of value in exchange.

If we can't see some sort of value, either to ourselves or to others, in sharing, we will not share.

But value is not just money. And rights are not really about controlling what others do in their own private places. And there are other ways to share.

By refraining from efforts to control what people did outside the market, we protected the private things that are done outside the market and protected the foundation rights that allow us to consider rights to inventions and writings, and to secure them.

That's no longer the case. Certain "artists associations" (which are not really involved in creating art) are no longer satisfied to stay out of our backyards, bedrooms, minds, private places. And most non-practicing patent-holders are absolutely incensed that some patent they own might be practiced in private without somebody paying for the privilege.

And I have to wonder -- Who allowed non-practicing entities to get the rights to these works of art and invention? What law supports their claims to the rights? And is that law really based in anything Constitutional?

Moreover, there is a flood of patents and copyrights. Not an overgrown forest of entangled claims that could maybe be cut through with the support of a good database and the hiring out of the industry of qualified practitioners of technology to build, maintain, and search through the databases, but floods and storms that sweep everything out of their path.

Claims that cover things that have been claimed in tens and hundreds and thousands (literally) of other patents, parallel, prior and even expired.

How did this happen?

(And I'm muttering under my breath something about who it might have been that convinced Congress to underfund the PTO about twenty years ago, and to ignore the then already glaring need to computerize the patent records, etc. And who it might have been that apparently ordered the patent examiners to ignore software that existed prior to some point in the late '80s or early '90s in searching for prior art. At whose behest?

And, especially, who allowed abstract software claims to be considered patentable works, when until then, concrete claims had been considered essential for patent eligibility? No source code in the patent claims? In other words, no implementation details? No instantiation of the invention to allow comparison with another invention?


And often, when there is source code, the claims are allowed to extend to disparate languages, languages under which the implementation significantly differs, to the degree that, in any concrete field, would be considered a different invention. Who allowed abstraction to be patented in the name of software?

Well, some people, myself included, readily admit that software is by nature abstract. One of the reasons software was originally set outside the domain of patentable material was the recognition that the mathematical nature of software forced it to a level of abstraction that does not mix well with what were then considered the fundamental principles of patenting.

But such questions don't seem to find any response, even though I'm not the only one who is wondering.)

There are other ways to share, besides extra-Constitutional "temporary monopolies" created based on non-Constitutional extensions to patents and copyrights.

"Open source" or "free/libre" licenses provide another framework for sharing. The GPL and the BSD/MIT class licenses are prominent examples of the approach, for software. The Creative Commons organization has several licenses that extend the concepts to other creative domains.

The idea behind the BSD/MIT class license is that the original author (inventor), for whatever reason, does not want to bother with the trouble usually required to share through patents. The only thing condition is that other users should not try to steal the work, claim the copyright for themselves, etc.

In school, we would talk about plagiarism and attribution. We should talk about such things more in patent and copyright practice.

The idea behind the GPL is that the final product is shared similarly to the BSD, but with an additional condition that induces sharing. The work is only allowed to be the base of further creative work for those who are willing to share what they have built on top of the original work.

This is not forced sharing, it is an exchange. If you don't want to share, you don't have to use the GPL licensed work.

If one wants only to share the final product until the patent or copyright expires, these approaches to sharing are not appropriate.

On the other hand, many people are far less interested in control or profit, and more interested in the right to gain other value by sharing.

As long as none of the three general approaches are forced on anyone, there should be no problem. Should there?

Why is it that so many of the group that wants to only share the final product (and hardly that, at all) seem to want to use bogus intellectual property claims to force those who are interested in the value of more open sharing to forgo that value?

I'm not against patents and copyrights, but the current mess is a real mess, and not really legal, not conforming with the US Constitution.

Popular Posts