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"Current copyright law does not merely distort some markets -- rather it destroys entire markets."

http://www.techdirt.com/articles/20121116/16481921080/house-...

Have the rational conservatives become fed up after this election and decided to make the Republican party useful again? Because reforming copyright law to encourage innovation rather than stifling it is just plain good policy. It has been far too long since I've seen a Republican initiative that made me say, "Hell yes, that's what this country needs, make it so!" , but that's pretty much my response to this (and I say that as someone who makes my living producing copyrighted creative content), and I really hope these reforms happen.

(Also, and I realize this is opening a chicken accountancy division before the eggs hatch, if this heralds a new era of a Republican party actually working to better the people and the country instead of special interests and theocrats, I would a) be delighted, and b) imagine they will pick up a lot of Independent votes next election that have long gone democrat.)

EDIT: And in less than 24 hours, an update that they caved to pressure from the MPAA and RIAA and are retracting the report. I guess I won't hold my breath for actual reforms based on what is better for the public. Sad.
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Re: [P] Republicans talk sense on copyright reform
It would seem weird for this to become a partisan issue, but I welcome copyright reform and either party trying to do useful things in general. If it works, they can tackle patents next.
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Re: [P] Republicans talk sense on copyright reform
I read this a few hours ago and shouted, 'Go Republicans!'

My wife slowly emerged fromt he kitchen, started to speak, stopped, paused, started again:

'What did you just say..?'
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Re: [P] Republicans talk sense on copyright reform
tscook wrote:
It just needs to be abolished.


What would be the benefit of that?
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Re: [P] Republicans talk sense on copyright reform
Looking at the top of that article, it seems they've now retracted the proposal under pressure from the MPAA and RIAA.
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I read this story, but had to go out so I didn't get a chance to post about it. I'd also love to see copyright law changed, but what I think is really killing us right now is the way patent law and patents are handled. I think it's a much bigger deal to clarify what can be patented in the first place (Pinching on a touch screen can be patented? The way you edit or reorganize a list on a touch screen is patented?).

IP law has gone from sparking innovation to being a club one uses to sue one's rivals over. And that's just dumb. Particularly when technological advancements are what's likely to keep our economy humming along.
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perfalbion wrote:
I read this story, but had to go out so I didn't get a chance to post about it. I'd also love to see copyright law changed, but what I think is really killing us right now is the way patent law and patents are handled. I think it's a much bigger deal to clarify what can be patented in the first place (Pinching on a touch screen can be patented? The way you edit or reorganize a list on a touch screen is patented?).

IP law has gone from sparking innovation to being a club one uses to sue one's rivals over. And that's just dumb. Particularly when technological advancements are what's likely to keep our economy humming along.


I don't disagree. The idea that obvious ideas like pinching on a touch screen, or "one-click shopping", or whatever other improvements we want to adapt, can be patented, is contrary to progress. Advancement, in the arts but especially in technology, is all about being taller by standing on the shoulders of giants.
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It did seem way too cool for the Republican Party
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tscook wrote:
It just needs to be abolished.

Yeah, let those artists starve like they're supposed to!

shake
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toku42 wrote:
It did seem way too cool for the Republican Party


"hollywood" constantly goes at them, the reps should go
at them right back.
 
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Osirus wrote:
perfalbion wrote:
I read this story, but had to go out so I didn't get a chance to post about it. I'd also love to see copyright law changed, but what I think is really killing us right now is the way patent law and patents are handled. I think it's a much bigger deal to clarify what can be patented in the first place (Pinching on a touch screen can be patented? The way you edit or reorganize a list on a touch screen is patented?).

IP law has gone from sparking innovation to being a club one uses to sue one's rivals over. And that's just dumb. Particularly when technological advancements are what's likely to keep our economy humming along.


I don't disagree. The idea that obvious ideas like pinching on a touch screen, or "one-click shopping", or whatever other improvements we want to adapt, can be patented, is contrary to progress. Advancement, in the arts but especially in technology, is all about being taller by standing on the shoulders of giants.


Obvious ideas cannot be patented. It's right there in the law. USC 35 103. Look it up.

Of course, it's very easy to claim an idea was obvious after you've been told what it is. But the assessment of whether or not an idea was obvious has to be assessed as of the date of filing of the patent.

The Amazon 1-click is a perfect example. It was filed in 1997. Then the internet was new, internet shopping was even newer, and people didn't trust it. The idea that the server could store your card details and identify you through browser cookies was not an obvious proposal in 1997, when cookies themselves were pretty new.

(Side note - the amazon patent doesn't cover the concept of 'clicking once to order something' per se, but rather covers a specific implementation using, cookies, etc. Ok, it's probably the only practical way to implement it on the current iteration of the internet, but it's not the concept that's patented).

Despite legal challenges in multiple jurisdictions (including the US, Canada and Australia that I know of), and a $10,000 reward offered by Amazon's competitors, no-one has been able to come up with a piece of evidence that proves even to a 'balance of probabilities' standard in these jurisdictions that the 1-click patent would have been obvious in 1997.

Sounds obvious as hell in 2012. But try and picture the state of the internet 15 years ago, and ask was it really so obvious that you could order something online without having to input your credit card details for every transaction?
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bigfluffylemon wrote:
Of course, it's very easy to claim an idea was obvious after you've been told what it is. But the assessment of whether or not an idea was obvious has to be assessed as of the date of filing of the patent.


#1 - I don't think there's a great deal of dispute that non-obvious advances in technology should be covered by patents.

#2 - I think that there is a reasonable argument about whether or not something like 1-click should qualify as inventions that may be patented. Yes, they involve pieces of technology. However, they are business methods, which were exempt from patent coverage until (unsurprisingly) the Internet and eCommerce emerged and the USPTO was faced with having to determine if any of the patent submissions they received in that flood of submissions qualified or fell into a "business method exception."

I understand your refutation of this type of patent, and agree that the courts upheld them. However, I'm not convinced that many of the judges can necessarily differentiate from a fundamental technology (like a web server) and the application of such a technology to a business process or method (like placing an order). Algorithms cannot be patented, for example - so what, precisely, about the generic "1-click ordering" did Amazon "invent" that deserved patent coverage? Using cookies? That was an obvious invention at the time - it was spelled out in the specification for cookies in the first place. Storing customer data? Hmmm, there's about a bazillion reasons to do that. Connecting the two to simplify ordering? OK - but this isn't a technology, its the concerted use of two other technologies to accomplish a business process.

IANAL so my arguments are probably crap. But even when the patent was issued to Amazon, I thought it was crazy. I think it's crazy that Apple holds a number of patents on gestures performed on touch screens - the screen is the technology, the gesture is merely an process supported by such technology.

The biggest problem that we now have with IP law is that it has become a reason to sue, not a reason to innovate. It has become a means of achieving monopoly or market dominance by enforcing the patent. That's not what it's supposed to do. It's certainly not supposed to bias the process extremely heavily in favor of "the big guy" rather than the individual inventor.

And that's very problematic. We should overhaul the law to clarify what can and cannot be patented. If we don't, we risk a great deal on the innovation front.
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perfalbion wrote:
bigfluffylemon wrote:
Of course, it's very easy to claim an idea was obvious after you've been told what it is. But the assessment of whether or not an idea was obvious has to be assessed as of the date of filing of the patent.


#1 - I don't think there's a great deal of dispute that non-obvious advances in technology should be covered by patents.

#2 - I think that there is a reasonable argument about whether or not something like 1-click should qualify as inventions that may be patented. Yes, they involve pieces of technology. However, they are business methods, which were exempt from patent coverage until (unsurprisingly) the Internet and eCommerce emerged and the USPTO was faced with having to determine if any of the patent submissions they received in that flood of submissions qualified or fell into a "business method exception."



And that's very problematic. We should overhaul the law to clarify what can and cannot be patented. If we don't, we risk a great deal on the innovation front.


That is a very different question. You originally said 'obvious', which has a specific meaning in patent law.

Whether or not this is the kind of subject matter that we want to be granting a patent for at all is a very thorny one, and one that has been the subject of a great deal of debate. Forgive me if I don't give my own opinion on that debate, but I work in IP and don't want any accusations of my personal opinions biasing my work. I'll stick to the facts as I understand them.

So far the courts have generally said that such subject matter does fall within the scope of what may be granted a patent. As a general rule, most countries do not deny business methods patents on the grounds that they are business methods 'per se'. Abstract ideas cannot be patented, so the question that usually has to be asked is whether the 'business method' is merely an abstract concept or has a 'tangible, real-world effect'. If the latter, it can (probably) be the subject of a patent. And implementing an abstract idea through technology may be sufficient to satisfy that test, or it may not. This is currently a fairly open question in patent law. The intersection of technology with implementing what are otherwise 'abstract' ideas and allowing the arguably abstract ideas has been rejected in some circumstances, where the use of the technology is incidental to the invention. See for example CyberSource Corporation v Retail Decisions, Inc (Fed. Cir. 2011, No. 2009-1358). But where the technology is central to the implementation of the invention, it is generally considered to allow it to qualify for a patent, as in the Amazon case.

You may have noticed the Australian flag in my location. This is a hot topic for me as one case that is being asked to decide that very question is in court today:

https://www.comcourts.gov.au/file/Federal/P/NSD3/2011/action...

I watch this space with interest.

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perfalbion wrote:


The biggest problem that we now have with IP law is that it has become a reason to sue, not a reason to innovate. It has become a means of achieving monopoly or market dominance by enforcing the patent. That's not what it's supposed to do. It's certainly not supposed to bias the process extremely heavily in favor of "the big guy" rather than the individual inventor.


One more point. While this is an oft levelled criticism of the patent system, it is not something it has 'become'. Hot new technology has always been the subject of this kind of action.
http://www.bloomberg.com/news/2012-10-08/apple-phone-patent-...

Whether it's what we want from our patent systems is an open question, but the litigation is nothing new. In fact, the number of actions per patent granted has fallen (although the number of patents granted has grown, massively, so read into that what you will). It's just that the current high-tech patent wars are much publicised, largely through the very technology in question, ironically.
 
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And now a musical interlude, brought to you by combining two previously created works in an interesting way:
 
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bigfluffylemon wrote:
That is a very different question. You originally said 'obvious', which has a specific meaning in patent law.


Actually, I think you're confusing me with another poster here.

Quote:
Whether or not this is the kind of subject matter that we want to be granting a patent for at all is a very thorny one, and one that has been the subject of a great deal of debate. Forgive me if I don't give my own opinion on that debate, but I work in IP and don't want any accusations of my personal opinions biasing my work. I'll stick to the facts as I understand them.


I don't give a damn if you share them. We'll just mock you mercilessly for being so obviously biased.

More seriously, it'd be interesting to get your opinion.

Quote:
So far the courts have generally said that such subject matter does fall within the scope of what may be granted a patent.


They have and they haven't. It's been a pretty mixed bag when a patent challenge makes it to a point where precedent is being set. In some cases, the patent's been upheld, in others it hasn't. There seems to be little rhyme or reason to the decisions to some of us outside observers. The method must be connected to a machine, but the degree of the connection, the uniqueness of the machine, the ability to substitute different machines, etc. doesn't seem to be well defined. Which results in more than a bit of a mess.

However, even if we get beyond current precedent, I think we need to reform the law to go back to dumping business processes (and the occasional business model). They are innovative applications of technology, yes. But they are not technical advancements in general - they are very frequently new applications of existing technologies. I'd put 1-click purchasing squarely in this camp - Amazon added nothing new to the technical mix here, even when viewed through the light of 1997.

At least, that's one man's opinion - we've swung too far in one direction and need to move back.
 
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bigfluffylemon wrote:
One more point. While this is an oft levelled criticism of the patent system, it is not something it has 'become'. Hot new technology has always been the subject of this kind of action.
http://www.bloomberg.com/news/2012-10-08/apple-phone-patent-...


Yes and no. I don't recall there being patent trolls in the 19th century, for example. Nor strategic acquisitions (such as Google purchasing Motorola's mobile division) to bulk up on patents so that you could force cross-licensing in settlements.

I don't dispute that patent conflicts existed or that they got nasty. But I think the scale of the problem now is dramatically different.
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perfalbion wrote:
bigfluffylemon wrote:
That is a very different question. You originally said 'obvious', which has a specific meaning in patent law.


Actually, I think you're confusing me with another poster here.


Sorry.

perfalbion wrote:
[q="bigfluffylemon"]
Quote:
Whether or not this is the kind of subject matter that we want to be granting a patent for at all is a very thorny one, and one that has been the subject of a great deal of debate. Forgive me if I don't give my own opinion on that debate, but I work in IP and don't want any accusations of my personal opinions biasing my work. I'll stick to the facts as I understand them.


I don't give a damn if you share them. We'll just mock you mercilessly for being so obviously biased.

More seriously, it'd be interesting to get your opinion.

Quote:
So far the courts have generally said that such subject matter does fall within the scope of what may be granted a patent.


They have and they haven't. It's been a pretty mixed bag when a patent challenge makes it to a point where precedent is being set. In some cases, the patent's been upheld, in others it hasn't. There seems to be little rhyme or reason to the decisions to some of us outside observers. The method must be connected to a machine, but the degree of the connection, the uniqueness of the machine, the ability to substitute different machines, etc. doesn't seem to be well defined. Which results in more than a bit of a mess.


I think that's what I said. Or at least, what I was getting at. Some have been upheld, some haven't. There are some patterns, but what is or isn't patentable subject matter in this sphere is something that patent offices, applicants, defendants and courts are all grappling with.

perfalbion wrote:

However, even if we get beyond current precedent, I think we need to reform the law to go back to dumping business processes (and the occasional business model). They are innovative applications of technology, yes. But they are not technical advancements in general - they are very frequently new applications of existing technologies. I'd put 1-click purchasing squarely in this camp - Amazon added nothing new to the technical mix here, even when viewed through the light of 1997.

At least, that's one man's opinion - we've swung too far in one direction and need to move back.


That would probably involve changing legislation, since as I said, nothing in the current law (at least in the US or Australia) involves dumping business methods because they are business methods per se. Europe does specifically exclude them, but they run into the problem of how do you define the corners of what is or isn't a 'business method'? It's not an easy question to answer. Even in Europe, the 1-click patent was not rejected on the grounds of being a business method (it was rejected on the grounds of being obvious - European obviousness law differs in some ways from the US or Australia).

At the moment 'innovative applications of existing technology' are granted a patent, as long as they are not obvious (I'm happy to talk more about what 'not obvious' means if anyone cares, but I won't go into detail here). There does not have to be a specific 'technical' advancement in the way I infer you mean it. The 'invention' is the application of the existing technology to the solution of a particular technical problem. To change the principle that patents are available for a new use of something already known would have enormous flow-on effects to all areas of technology, and therefore would be a change whose pros and cons would have to be weighed very carefully by legislators and policy makers.

 
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perfalbion wrote:
bigfluffylemon wrote:
One more point. While this is an oft levelled criticism of the patent system, it is not something it has 'become'. Hot new technology has always been the subject of this kind of action.
http://www.bloomberg.com/news/2012-10-08/apple-phone-patent-...


Yes and no. I don't recall there being patent trolls in the 19th century, for example. Nor strategic acquisitions (such as Google purchasing Motorola's mobile division) to bulk up on patents so that you could force cross-licensing in settlements.

I don't dispute that patent conflicts existed or that they got nasty. But I think the scale of the problem now is dramatically different.


There's at least some evidence that it's not an entirely new problem.
http://www.cellular-news.com/story/28038.php. Indeed, by some definitions, you could consider Thomas Edison to have been doing exactly that kind of behaviour. It depends how you define it.

The trouble is, there's very little hard data about the extent of this behaviour. That there are companies whose business model is based around enforcement and/or licensing of patents is clear. That their activities have increased (out of proportion to the increase in the IP market in general), or indeed that their behaviour is wholly detrimental, is yet to be proven.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1792442
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chaendlmaier wrote:
whac3 wrote:
tscook wrote:
It just needs to be abolished.

Yeah, let those artists starve like they're supposed to!

shake

I almost felt like I should put forth some arguments for tscook's point, but then I remembered he wasn't even making a point, just spouting forth some of the latest group think of the circles he frequents.


To be fair, the VAST majority of "artists" of all type ARE 'starving'-types, or otherwise overworked to rather extreme degrees.

It's the middle men - corporations who end up 'owning' the produced art - that are making out like bandits in the current system. Consider music
Quote:
For every $1,000 in music sold, the average musician makes $23.40


Copyright law, in its current form, has little to do with protecting the artists, themselves.
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bigfluffylemon wrote:


Of course, it's very easy to claim an idea was obvious after you've been told what it is. But the assessment of whether or not an idea was obvious has to be assessed as of the date of filing of the patent.


The problem is that the people that would be qualified to tell if something is obvious or not are NOT the people working at the patent office. In software, for instance, a good developer with 5 years of industry experience wouldn't be caught dead working as a patent examiner: The people that end up doing the work are out of school or with very little experience.

And yes, the Amazon patent was obvious at the time. What was innovative was someone even asking about the problem, and believing the user base would trust them enough to let them store credit card information in their systems. Audacious business, but any engineer would have handed you the same implementation if you asked him how to do 1 click shopping.

When companies try to build their patent portfolio, they ask engineers what they've been doing, but the determination of what is worth patenting is down to legal. Legal can't tell me if my implementation is novel or not.
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hibikir wrote:
bigfluffylemon wrote:


Of course, it's very easy to claim an idea was obvious after you've been told what it is. But the assessment of whether or not an idea was obvious has to be assessed as of the date of filing of the patent.


The problem is that the people that would be qualified to tell if something is obvious or not are NOT the people working at the patent office. In software, for instance, a good developer with 5 years of industry experience wouldn't be caught dead working as a patent examiner: The people that end up doing the work are out of school or with very little experience.

And yes, the Amazon patent was obvious at the time. What was innovative was someone even asking about the problem, and believing the user base would trust them enough to let them store credit card information in their systems. Audacious business, but any engineer would have handed you the same implementation if you asked him how to do 1 click shopping.

When companies try to build their patent portfolio, they ask engineers what they've been doing, but the determination of what is worth patenting is down to legal. Legal can't tell me if my implementation is novel or not.


Not necessarily true. Plenty of people at patent offices around the world have a PhD or industry experience.

Now, I'm not saying that patent offices are perfect. Clearly they are not, and cannot be expected to be. That's why there are legal challenges available to the validity of a patent. The courts are able to obtain evidence from expert witnesses that patent offices do not have access to. Indeed, most of a court enquiry into what was or was not obvious relies on testimony from experts in the field of the patent. Most patent offices have procedures available for third-party initiated challenges, where similar evidence may be admitted.

So if software engineers would have considered it obvious, why have the opponents of the 1-click failed to produce satisfactory expert evidence from them in any of these proceedings?

Also, you have hit the nail perfectly on the head. One of the innovative things about it was that someone was asking about the problem. The solution to a problem is often obvious in terms of implementation, but if no-one had even recognised that the problem existed before, then even identifying that there is a problem in the first place is sufficient under patent law for the invention to be considered non-obvious.

The law says that the 'invention' (as a whole) must be non-obvious, not that the technical implementation must be. It depends on your starting point for asking the question.

If your problem is: how do we allow people to shop online with fewer mouse clicks? then the answer is obvious - reduce it to one.

However, if you define the problem as: how do we make online shopping more streamlined? then you admit yourself that the answer was innovative, even if the technical implentation of the answer was not.
 
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Osirus wrote:
EDIT: And in less than 24 hours, an update that they caved to pressure from the MPAA and RIAA and are retracting the report. I guess I won't hold my breath for actual reforms based on what is better for the public. Sad.


Now the author is fired, for making too much sense.

Staffer axed by Republican group over retracted copyright-reform memo
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DaviddesJ wrote:
Osirus wrote:
EDIT: And in less than 24 hours, an update that they caved to pressure from the MPAA and RIAA and are retracting the report. I guess I won't hold my breath for actual reforms based on what is better for the public. Sad.


Now the author is fired, for making too much sense.

Staffer axed by Republican group over retracted copyright-reform memo


 
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