17 ms·

Our Intellectual Property Laws Are Out of Control (2013)

149 points by smitty1e 6y ago

smitty1e 6y ago
Glenn Harlan Reynolds (born August 27, 1960) is Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law, and is known for his American politics weblog, Instapundit. https://en.m.wikipedia.org/wiki/Glenn_Reynolds https://en.m.wikipedia.org/wiki/Glenn_Reynolds
jbotz 6y ago
Popular Mechanics has been popularizing science and technology and promoting inventions for over 100 years. For them to publish an article that comes down so firmly against the current intellectual property laws is significant. It's time for change.
- smitty1e 6y ago
  I put the author's bio below. He's a libertarian-leaning lawyer and relatively keen observer of our times.
- ykevinator 6y ago
  Scientific research and $10k purses are not the same. We should protect the first and turn a blind eye to the second
- phreack 6y ago
  You're right, but also the article is over 7 years old. It's been time for change for a long time.
kiba 6y ago
Patent holders and genuine inventors can and will hold the development of technology back. Just look at the 3D printing market and its thriving ecosystem after the patent on FDM printing expired. It is the open source community that's innovating, not the bigwig that started 3D printing in the first place.
- mjevans 6y ago
  There should be a compulsory license fee, and the total fees for any given device should be capped as well. It would actually be nice if there were a couple different schedules for such fees, and if one of those was based on the final sale cost. That would make "IP" a non-issue for no-charge free (as in beer, but also liberty) software.
  - GeneralMayhem 6y ago
    Your second suggestion would be extremely exploitable, because you'd be allowing the licensee unilateral control over the price. Your competitor just came out with a cool new widget that's going to keep them in the black for years? Copy it, shove it on the market at near-zero price, and enjoy your uncontested market.
    - hakfoo 6y ago
      Aren't there already anti-dumping regulations for similar goals? I'd wonder if you'd see a lot of products sold "ready to assemble". The software is free, or some mandatory-license component costs pennies, but it's useless without the remaining bits to plug it into.
    - mjevans 6y ago
      Could you provide a hypothetical example of where this might exist? I'm having trouble envisioning how selling some form of hardware at an extreme markup is necessary if the compulsory license fee for being able to copy it is a PORTION of the sale (and not profit) price? That would ideally mean that someone else has decided to bring the product to market for more people, and that the actual inventors get rewarded for enriching society faster and more greatly in total.
      - GeneralMayhem 6y ago
        Along the lines of hakfoo's response below, this would naturally happen any time you're dealing with enhancements to a larger ecosystem (i.e. complementary goods) - the sale price of certain products can be profitably set to almost zero if they encourage buying more expensive, or at least higher-margin, things. A specific example: patentable improvements to consumer-grade inkjet printers might be disincentivized under this scheme, because the real money is in selling ink to locked-in buyers. I think there are some more fundamental problems with using sale price as the base of computation. What's "final" sale? Is it the price my company sells for wholesale? If I own my own vertically-integrated distribution network and sell direct to consumers, do I now owe the patent holder more per item? Am I incentivized to put my retail stores behind a shell company to bake the "final" sale price earlier in the pipeline? On that note, what's to stop me from doing so recursively? I could set up a "manufacturer" entity that produces the patented widget at a loss, paying the minimum licensing fee, and then an "assembler" entity that packages it into a meaningful product and actually makes all the profit. I suppose to some extent this is the same problem as deciding when to impose sales tax, so maybe the same regulation works there, but it feels trickier. That's also setting aside what I expect are deal-breaking practical problems having to do with components. Most actual products are not patented in their entirety. If you use a patented design that improves one component of a $400 machine, is the license fee based on a fraction of $400? Do I owe the patent holder more per unit if I assemble my product with a high-quality aluminum shell instead of a cheap plastic one? If I have to use 5 different patent ideas to make that machine, do I pay all 5 owners the same fraction? If not, then who decides the respective fee for each one? (As an example, a modern smartphone probably makes use of hundreds of patents - think about how many patented bits of circuitry there are just in the radio and modem.)
chadash 6y ago
The system as we know it needs to be overhauled. We need to scrap everything and then think carefully about what should be patentable with the goal being a system that’s good for society. Drugs that cost $1B to bring to market? Seems like they should get some kind of exclusive period though we can argue over what that period of time should be. Software? Nope. Keep copyright law for that, but even there, drastically reduce the copyright period.
- amelius 6y ago
  We need a system where a patent can be challenged in the initial period when someone applies for a patent. For example, someone wants to patent "one click shopping". The USPTO publishes the "objective" section of the patent application. Then, during the challenge-period, someone else reads the application, implements a one-click shopping button, sends the solution to the USPTO and the patent is denied. Optionally, the person who found the solution (either by implementation or by finding prior art) is then compensated for their work by the original applicant. The system could be extended by allowing the patent applicant to specify the expiration date for the patent, but a longer expiration time will also mean that the challenge-period will be longer and the cost for a rebuttal will be higher.
- mjevans 6y ago
  Much of the cost of that drug being brought to market has far less to do with innovation and much more to do with regulatory approval and clinical trials. A solution to address that might be in the form of designed profits, where the exclusivity period is determined by the profits generated. However I'd also still like to see second and more sources, so a compulsory license during this period is also desirable, but might focus on a fixed percentage of profits. (Also contributing to paying down the public liberation fee of the work.)
  - ReptileMan 6y ago
    Bulk payment of couple of billion can get the job done.
- beefield 6y ago
vegetablepotpie 6y ago
When the group of people who are supposed to be protected by a law say it’s not helpful and the group that enacts the law says it’s for their own good, it says a lot about the law and who it is really benefiting.
- pmiller2 6y ago
  Whether a law or policy gets enacted at the federal level has essentially zero correlation with public opinion, in general: https://act.represent.us/sign/the-problem https://act.represent.us/sign/the-problem
  - yesenadam 6y ago
    Thanks, very interesting. I found their "what the public wants has no impact" hard to believe – well, they have about 4 differently-worded versions of that on that page – so I tried to read the first paper cited, > Gilens and Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Perspective on Politics, 2014. http://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf http://scholar.princeton.edu/sites/default/files/mgilens/fil... In which Figure 1 is the flat graph in the video, showing that about 30% of policies are adopted no matter what percentage of 'average citizens' favor them. For 'average citizen' (what on that webpage they call "the public" and "public opinion") they seem to consider only opinions of the median-income percentile (i.e. 1% of people): > Policy preferences at the fiftieth income percentile — that is, the preferences of the median-income survey respondent—work quite well as measures of the preferences of the average citizen Also it finds a correlation of 0.78 between the preferences of this percentile and that of "economic elites", yet a -0.1 negative correlation between economic elites and business interest groups, which is surprising. This seems to me to contradict the "no impact" finding: > Thus when popular majorities favor the status quo, opposing a given policy change, they are likely to get their way; but when a majority—even a very large majority—of the public favors change, it is not likely to get what it wants. In our 1,779 policy cases, narrow pro-change majorities of the public got the policy changes they wanted only about 30 percent of the time. More strikingly, even overwhelmingly large pro-change majorities, with 80 percent of the public favoring a policy change, got that change only about 43 percent of the time. How is that "no impact"? Anywhow, it's an interesting study, I'd love to read what someone who knows statistics better than me thinks of it.
Thorentis 6y ago
The first step in dealing with these issues, is to have a serious discussion about the term "intellectual property", and whether or not an idea can indeed be "property". I think a very large part of the problem, is that our society has somehow come to the conclusion that yes, they can be. I strongly disagree. I think a better way to look at IP, is as an "intellectual lease". When you have an idea, as the person or group who originally conceived of it, you are presumably in the best position to make use of it. You can therefore "lease" from society, the right to use it exclusively for a short, well defined period of time. At the end of that term, your lease expires. At no point do you "own" the idea, because as soon as you release it into the world, it is already in the minds of many, some of which may be able to put it to better use than you, or to improve it faster than you. This has several ramifications, including ones that effect creative works too. I posted a few long comments recently about copyright that expresses my view, but to summarise - creative works should have a limited window during which the author or creator can be the exclusive seller of the work (eg copyright should be about restricting who can profit, rather than who can copy). After that time, anybody is free to sell as well. This has many benefits. I used Harry Potter as the example last time as it is well know. Harry Potter now is known by almost everybody. We all know the story, we know the characters. JK has made a ton of money - more money imo, than any one author deserves, but that aside. HP is part of our collective humans story now. If I want to make a mobile game about it, or write a play about it, or adapt it for a new medium, or translate it - why should I still owe the original author royalties when I could reproduce the plot from memory? Again, I use the example of ancient Greece, and the way in which aural story telling was paranount. Stories spread, adapted, becamr part of society. The ones that survived that we have written down are simply one version that would have been told aurally at one point in time. The way that we insist that works and derivative works be set in stone in order to maintain profit is prioritising profit over the joy that is the spreading and adapting of stories that has been central to most human cultures since the beginning.
- ArchD 6y ago
  All reasonable points. But except in an ideal world, I don't see how people who shape and enforce the laws are incentivized to realize them. That intellectual property is "out of control" is perhaps but part of a bigger picture that the government is dysfunctional and out-of-control. You can talk about how things should be until the cows come home, but at the end of the day, the big question is how do you realize your ideas in the world.
therealdrag0 6y ago
Note this is from 2013
shmerl 6y ago
Today they serve control freaks who use them to dictate policy. Slap DRM on anything and then use anti-circumvention provisions to outlaw whatever you want because "breaking DRM is illegal".
deleted 6y ago
[deleted]
neilwilson 6y ago
Why our current system needs IP? Because it is collateral for loans - which is the system we use via Interest Rate targeting to inject money into circulation. Banking systems from the physical industrial era worked by discounting physical assets. You built a car and then discounted that asset at the bank to build more cars. That model doesn’t scale with ideas and services. Unless you have something that makes ideas and services behave like physical assets. If we moved to a system where we discounted time instead (ie you can always sell your 8 hours of labour power) then we wouldn’t need to fund creativity by bank lending.
LatteLazy 6y ago
Many people don't know that fashion have very very limited IP protection. It remains one of the most innovative and changeable sectors of the economy...
reedwolf 6y ago
A hobby of mine is to wander into libertarian communities and ask if there's such a thing as "intellectual property," then walk out whistling.
- yolomcsuperswag 6y ago
  As a libertarian, that’s hilarious!
perfunctory 6y ago
I read somewhere that neanderthals were not less intelligent than humans, but humans "won" because being more social animals they can better learn from each other and spread ideas faster. Sometimes I feel like excessive "intellectual property" laws make us more like neanderthals.
- jimmySixDOF 6y ago
  Anthropologist Joseph Henrik has a theory about H.Sapiens vs Neanderthal using a Copycat vs Genius metaphor explained in the book Humankind [1] Copycats are 10x more social Geniuses are 100x more inventive 1 in a 1000 Copycats will invent a new fishing rod but will share this knowledge with 10 others 1 in 10 Geniuses will invent the new rod and only teach to 1 other Given a 50% sucess rate for learning: A max of 1 in 5 Geniuses will ever have the new Fishing Rod knowledge in a population (50% invented and 50% learned) Copycats will get to 99.9% [1] Humankind: A Hopeful History https://www.goodreads.com/book/show/52879286-humankind https://www.goodreads.com/book/show/52879286-humankind also [2]https://aeon.co/essays/forget-the-lone-genius-it-s-copycats-who-drive-progress https://aeon.co/essays/forget-the-lone-genius-it-s-copycats-...

149 points by smitty1e 6y ago

Glenn Harlan Reynolds (born August 27, 1960) is Beauchamp Brogan Distinguished Professor of Law at the University of Tennessee College of Law, and is known for his American politics weblog, Instapundit. https://en.m.wikipedia.org/wiki/Glenn_Reynolds https://en.m.wikipedia.org/wiki/Glenn_Reynolds

jbotz 6y ago

Popular Mechanics has been popularizing science and technology and promoting inventions for over 100 years. For them to publish an article that comes down so firmly against the current intellectual property laws is significant. It's time for change.

smitty1e 6y ago
I put the author's bio below. He's a libertarian-leaning lawyer and relatively keen observer of our times.
ykevinator 6y ago
Scientific research and $10k purses are not the same. We should protect the first and turn a blind eye to the second
phreack 6y ago
You're right, but also the article is over 7 years old. It's been time for change for a long time.

kiba 6y ago

Patent holders and genuine inventors can and will hold the development of technology back. Just look at the 3D printing market and its thriving ecosystem after the patent on FDM printing expired. It is the open source community that's innovating, not the bigwig that started 3D printing in the first place.

mjevans 6y ago
There should be a compulsory license fee, and the total fees for any given device should be capped as well. It would actually be nice if there were a couple different schedules for such fees, and if one of those was based on the final sale cost. That would make "IP" a non-issue for no-charge free (as in beer, but also liberty) software.
- GeneralMayhem 6y ago
  Your second suggestion would be extremely exploitable, because you'd be allowing the licensee unilateral control over the price. Your competitor just came out with a cool new widget that's going to keep them in the black for years? Copy it, shove it on the market at near-zero price, and enjoy your uncontested market.
  - hakfoo 6y ago
    Aren't there already anti-dumping regulations for similar goals? I'd wonder if you'd see a lot of products sold "ready to assemble". The software is free, or some mandatory-license component costs pennies, but it's useless without the remaining bits to plug it into.
  - mjevans 6y ago
    Could you provide a hypothetical example of where this might exist? I'm having trouble envisioning how selling some form of hardware at an extreme markup is necessary if the compulsory license fee for being able to copy it is a PORTION of the sale (and not profit) price? That would ideally mean that someone else has decided to bring the product to market for more people, and that the actual inventors get rewarded for enriching society faster and more greatly in total.
    - GeneralMayhem 6y ago
      Along the lines of hakfoo's response below, this would naturally happen any time you're dealing with enhancements to a larger ecosystem (i.e. complementary goods) - the sale price of certain products can be profitably set to almost zero if they encourage buying more expensive, or at least higher-margin, things. A specific example: patentable improvements to consumer-grade inkjet printers might be disincentivized under this scheme, because the real money is in selling ink to locked-in buyers. I think there are some more fundamental problems with using sale price as the base of computation. What's "final" sale? Is it the price my company sells for wholesale? If I own my own vertically-integrated distribution network and sell direct to consumers, do I now owe the patent holder more per item? Am I incentivized to put my retail stores behind a shell company to bake the "final" sale price earlier in the pipeline? On that note, what's to stop me from doing so recursively? I could set up a "manufacturer" entity that produces the patented widget at a loss, paying the minimum licensing fee, and then an "assembler" entity that packages it into a meaningful product and actually makes all the profit. I suppose to some extent this is the same problem as deciding when to impose sales tax, so maybe the same regulation works there, but it feels trickier. That's also setting aside what I expect are deal-breaking practical problems having to do with components. Most actual products are not patented in their entirety. If you use a patented design that improves one component of a $400 machine, is the license fee based on a fraction of $400? Do I owe the patent holder more per unit if I assemble my product with a high-quality aluminum shell instead of a cheap plastic one? If I have to use 5 different patent ideas to make that machine, do I pay all 5 owners the same fraction? If not, then who decides the respective fee for each one? (As an example, a modern smartphone probably makes use of hundreds of patents - think about how many patented bits of circuitry there are just in the radio and modem.)

chadash 6y ago

The system as we know it needs to be overhauled. We need to scrap everything and then think carefully about what should be patentable with the goal being a system that’s good for society. Drugs that cost $1B to bring to market? Seems like they should get some kind of exclusive period though we can argue over what that period of time should be. Software? Nope. Keep copyright law for that, but even there, drastically reduce the copyright period.

amelius 6y ago
We need a system where a patent can be challenged in the initial period when someone applies for a patent. For example, someone wants to patent "one click shopping". The USPTO publishes the "objective" section of the patent application. Then, during the challenge-period, someone else reads the application, implements a one-click shopping button, sends the solution to the USPTO and the patent is denied. Optionally, the person who found the solution (either by implementation or by finding prior art) is then compensated for their work by the original applicant. The system could be extended by allowing the patent applicant to specify the expiration date for the patent, but a longer expiration time will also mean that the challenge-period will be longer and the cost for a rebuttal will be higher.
mjevans 6y ago
Much of the cost of that drug being brought to market has far less to do with innovation and much more to do with regulatory approval and clinical trials. A solution to address that might be in the form of designed profits, where the exclusivity period is determined by the profits generated. However I'd also still like to see second and more sources, so a compulsory license during this period is also desirable, but might focus on a fixed percentage of profits. (Also contributing to paying down the public liberation fee of the work.)
- ReptileMan 6y ago
  Bulk payment of couple of billion can get the job done.
beefield 6y ago

vegetablepotpie 6y ago

When the group of people who are supposed to be protected by a law say it’s not helpful and the group that enacts the law says it’s for their own good, it says a lot about the law and who it is really benefiting.

pmiller2 6y ago
Whether a law or policy gets enacted at the federal level has essentially zero correlation with public opinion, in general: https://act.represent.us/sign/the-problem https://act.represent.us/sign/the-problem
- yesenadam 6y ago
  Thanks, very interesting. I found their "what the public wants has no impact" hard to believe – well, they have about 4 differently-worded versions of that on that page – so I tried to read the first paper cited, > Gilens and Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Perspective on Politics, 2014. http://scholar.princeton.edu/sites/default/files/mgilens/files/gilens_and_page_2014_-testing_theories_of_american_politics.doc.pdf http://scholar.princeton.edu/sites/default/files/mgilens/fil... In which Figure 1 is the flat graph in the video, showing that about 30% of policies are adopted no matter what percentage of 'average citizens' favor them. For 'average citizen' (what on that webpage they call "the public" and "public opinion") they seem to consider only opinions of the median-income percentile (i.e. 1% of people): > Policy preferences at the fiftieth income percentile — that is, the preferences of the median-income survey respondent—work quite well as measures of the preferences of the average citizen Also it finds a correlation of 0.78 between the preferences of this percentile and that of "economic elites", yet a -0.1 negative correlation between economic elites and business interest groups, which is surprising. This seems to me to contradict the "no impact" finding: > Thus when popular majorities favor the status quo, opposing a given policy change, they are likely to get their way; but when a majority—even a very large majority—of the public favors change, it is not likely to get what it wants. In our 1,779 policy cases, narrow pro-change majorities of the public got the policy changes they wanted only about 30 percent of the time. More strikingly, even overwhelmingly large pro-change majorities, with 80 percent of the public favoring a policy change, got that change only about 43 percent of the time. How is that "no impact"? Anywhow, it's an interesting study, I'd love to read what someone who knows statistics better than me thinks of it.

Thorentis 6y ago

The first step in dealing with these issues, is to have a serious discussion about the term "intellectual property", and whether or not an idea can indeed be "property". I think a very large part of the problem, is that our society has somehow come to the conclusion that yes, they can be. I strongly disagree. I think a better way to look at IP, is as an "intellectual lease". When you have an idea, as the person or group who originally conceived of it, you are presumably in the best position to make use of it. You can therefore "lease" from society, the right to use it exclusively for a short, well defined period of time. At the end of that term, your lease expires. At no point do you "own" the idea, because as soon as you release it into the world, it is already in the minds of many, some of which may be able to put it to better use than you, or to improve it faster than you. This has several ramifications, including ones that effect creative works too. I posted a few long comments recently about copyright that expresses my view, but to summarise - creative works should have a limited window during which the author or creator can be the exclusive seller of the work (eg copyright should be about restricting who can profit, rather than who can copy). After that time, anybody is free to sell as well. This has many benefits. I used Harry Potter as the example last time as it is well know. Harry Potter now is known by almost everybody. We all know the story, we know the characters. JK has made a ton of money - more money imo, than any one author deserves, but that aside. HP is part of our collective humans story now. If I want to make a mobile game about it, or write a play about it, or adapt it for a new medium, or translate it - why should I still owe the original author royalties when I could reproduce the plot from memory? Again, I use the example of ancient Greece, and the way in which aural story telling was paranount. Stories spread, adapted, becamr part of society. The ones that survived that we have written down are simply one version that would have been told aurally at one point in time. The way that we insist that works and derivative works be set in stone in order to maintain profit is prioritising profit over the joy that is the spreading and adapting of stories that has been central to most human cultures since the beginning.

ArchD 6y ago
All reasonable points. But except in an ideal world, I don't see how people who shape and enforce the laws are incentivized to realize them. That intellectual property is "out of control" is perhaps but part of a bigger picture that the government is dysfunctional and out-of-control. You can talk about how things should be until the cows come home, but at the end of the day, the big question is how do you realize your ideas in the world.

therealdrag0 6y ago

Note this is from 2013

shmerl 6y ago

Today they serve control freaks who use them to dictate policy. Slap DRM on anything and then use anti-circumvention provisions to outlaw whatever you want because "breaking DRM is illegal".

deleted 6y ago

[deleted]

neilwilson 6y ago

Why our current system needs IP? Because it is collateral for loans - which is the system we use via Interest Rate targeting to inject money into circulation. Banking systems from the physical industrial era worked by discounting physical assets. You built a car and then discounted that asset at the bank to build more cars. That model doesn’t scale with ideas and services. Unless you have something that makes ideas and services behave like physical assets. If we moved to a system where we discounted time instead (ie you can always sell your 8 hours of labour power) then we wouldn’t need to fund creativity by bank lending.

LatteLazy 6y ago

Many people don't know that fashion have very very limited IP protection. It remains one of the most innovative and changeable sectors of the economy...

reedwolf 6y ago

A hobby of mine is to wander into libertarian communities and ask if there's such a thing as "intellectual property," then walk out whistling.

yolomcsuperswag 6y ago
As a libertarian, that’s hilarious!

perfunctory 6y ago

I read somewhere that neanderthals were not less intelligent than humans, but humans "won" because being more social animals they can better learn from each other and spread ideas faster. Sometimes I feel like excessive "intellectual property" laws make us more like neanderthals.

jimmySixDOF 6y ago
Anthropologist Joseph Henrik has a theory about H.Sapiens vs Neanderthal using a Copycat vs Genius metaphor explained in the book Humankind [1] Copycats are 10x more social Geniuses are 100x more inventive 1 in a 1000 Copycats will invent a new fishing rod but will share this knowledge with 10 others 1 in 10 Geniuses will invent the new rod and only teach to 1 other Given a 50% sucess rate for learning: A max of 1 in 5 Geniuses will ever have the new Fishing Rod knowledge in a population (50% invented and 50% learned) Copycats will get to 99.9% [1] Humankind: A Hopeful History https://www.goodreads.com/book/show/52879286-humankind https://www.goodreads.com/book/show/52879286-humankind also [2]https://aeon.co/essays/forget-the-lone-genius-it-s-copycats-who-drive-progress https://aeon.co/essays/forget-the-lone-genius-it-s-copycats-...