6 ms·

You're right -- if software patents aren't legitimate then no patents are legitimate. And in fact, no patents are legitimate. Worse than that, most people's co

by wissler 14y ago

You're right -- if software patents aren't legitimate then no patents are legitimate. And in fact, no patents are legitimate. Worse than that, most people's concept of "legitimate" is not legitimate. What most people seem to have banned from their thinking is anything close to resembling a ethical argument. Just because something is legal, does not make it ethical. That reverses the true order: what inherently flouts the ethical underpinning of law must not be made legal. E.g., one should never legalize rape, to make rape legal does not change the fact that it is unethical to make rape legal. But typically, whenever you try to offer anyone an ethical argument concerning patents, it goes straight over their head. They've been conditioned to think that whether patents are legal or not is an entirely pragmatic decision having nothing to do with ethics but only with economics. And so the mayhem continues...

rayiner 14y ago
If patents aren't ethical, then there are lots of things that aren't ethical, and I don't think the tech industry has the balls to confront those. E.g. trademark law supports the existence of the advertising industry, by creating protectable brands through restrictions on speech. Most web companies wouldn't exist in their current form if there wasn't a tremendous incentive for companies to build up those protectable brands through advertising.
- wissler 14y ago
  There are two issues here: whether a given law is ethical or not as written, and whether the spirit of the law can be supported even if it is unethical as written. As it turns out, one can make an argument that copyrights/trademarks can be reformed, but patents cannot. The difference is that no one can accidentally "trip" over a sensibly defined copyright or trademark, whereas patents are intrinsically a legal landmine -- people can and often do accidentally infringe.
  - rayiner 14y ago
    First, I'm not sure how accidental infringement goes to the heart of whether whether the laws are ethical or not. They're all fundamentally restraints on free expression. Second, you can accidentally infringe on a trademark, and can be prevented from using a trademark even if you came up with the term independently. Third, there is no reason why you couldn't add an "independent invention" defense to patent. Fourth, you have no basis for your claim that people "often" accidentally infringe patents.
    - wissler 14y ago
      - First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong. - Second, I am not referring to trademarks as presently defined. - Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice. - Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
      - rayiner 14y ago
        > First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong. I don't think I follow what you're trying to say. My point is that whether something can be accidentally infringed or not is a weird criterion to use to separate ethical and unethical restraints on free expression. We create civil liability for lots of things that happen on accident. I think the ethical discussion, if there is one, centers on whether these restraints on free expression or valid in the first place. > Second, I am not referring to trademarks as presently defined. You said that trademarks/copyright could be distinguished from patent based on accidental infringement. You could define trademarks in a way where accidental infringement didn't create liability, but you could define patents that way too. Neither are defined that way presently. > Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice. I'm not sure what 3rd grade reading level principles of ethical justice you're talking about. We require defendants to prove certain affirmative defenses all the time, generally in cases where something is unlikely to have occurred without wrongdoing. E.g. if you kill somebody in self defense, you're obligated to at least present evidence that it was in self-defense. And of course we're talking about civil litigation here, not criminal litigation. "Innocence" is the wrong terminology. > Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue. I'm not the one who said that people "often" accidentally infringe patents, you were.
- distant-uncle 14y ago
  At least in the case of trademarks, the potential for defamation gives it some credibility. I suppose from the standpoint of brand confusion alone, trademarks and patents are both equally unethical in that they both do not recognize independent discovery. Copyright is a much more balanced approach imo. Frankly I don't think many in many industries have the balls to admit just how much they would dislike their natural rights trampled on. In my experience, any time the conversation heads in that direction, the affected parties are seen scurrying away. For instance, I reckon a lawyer would reject any notion of limiting their natural right to practice law? Or perhaps even just certain techniques thereof. Really, I think it's time we start carving up territory in the domain of legal tools and tactics. Heck, I say we start carving up territory in just about anything one can think of. At least then the ridiculousness of it all might become apparent to enough weighty makers, that they would see to it that it'd be changed.
  - Evbn 14y ago
    Hi, I am changing my name to distant-uncle and embarking on a public campaign of cat torturing all across America. Is that acceptable?
    - distant-uncle 14y ago
      Lol that would be highly unethical. More seriously though, names are not people. Corporations are people, my friend. Oh and lastly, I do tend to think that on the basis of defamation alone, a reasonable argument for trademarks could be made. Nothing even remotely close to this argument exists for patents.
lukifer 14y ago
Ethics are only one component: there's also the simply criteria of whether the policy meets the desired goal. If an anti-rape law somehow resulted in more rape, having an ethical argument about it would be absurd. The stated goal of patents is not a moral imperative to protect inventors, but rather an economic hack that is meant to incentivize invention for the benefit of society, only benefitting inventors as a side effect. The fact that it is achieving the opposite of its goal means that an ethical discussion is worth having, but mostly irrelevant (see also: the Drug War).
- avar 14y ago
  There's a very large difference between stated goals and desired goals, the goals you mentioned are all stated goals. If you tried to abolish intellectual property the main opposition wouldn't be parties whose main motivation would be a genuine concern that you'd be de-incentivizing invention for the benefit of society, but rather parties who have a vested interest in the current system for their own benefit.

by wissler 14y ago

rayiner 14y ago

If patents aren't ethical, then there are lots of things that aren't ethical, and I don't think the tech industry has the balls to confront those. E.g. trademark law supports the existence of the advertising industry, by creating protectable brands through restrictions on speech. Most web companies wouldn't exist in their current form if there wasn't a tremendous incentive for companies to build up those protectable brands through advertising.

wissler 14y ago
There are two issues here: whether a given law is ethical or not as written, and whether the spirit of the law can be supported even if it is unethical as written. As it turns out, one can make an argument that copyrights/trademarks can be reformed, but patents cannot. The difference is that no one can accidentally "trip" over a sensibly defined copyright or trademark, whereas patents are intrinsically a legal landmine -- people can and often do accidentally infringe.
- rayiner 14y ago
  First, I'm not sure how accidental infringement goes to the heart of whether whether the laws are ethical or not. They're all fundamentally restraints on free expression. Second, you can accidentally infringe on a trademark, and can be prevented from using a trademark even if you came up with the term independently. Third, there is no reason why you couldn't add an "independent invention" defense to patent. Fourth, you have no basis for your claim that people "often" accidentally infringe patents.
  - wissler 14y ago
    - First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong. - Second, I am not referring to trademarks as presently defined. - Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice. - Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
    - rayiner 14y ago
      > First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong. I don't think I follow what you're trying to say. My point is that whether something can be accidentally infringed or not is a weird criterion to use to separate ethical and unethical restraints on free expression. We create civil liability for lots of things that happen on accident. I think the ethical discussion, if there is one, centers on whether these restraints on free expression or valid in the first place. > Second, I am not referring to trademarks as presently defined. You said that trademarks/copyright could be distinguished from patent based on accidental infringement. You could define trademarks in a way where accidental infringement didn't create liability, but you could define patents that way too. Neither are defined that way presently. > Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice. I'm not sure what 3rd grade reading level principles of ethical justice you're talking about. We require defendants to prove certain affirmative defenses all the time, generally in cases where something is unlikely to have occurred without wrongdoing. E.g. if you kill somebody in self defense, you're obligated to at least present evidence that it was in self-defense. And of course we're talking about civil litigation here, not criminal litigation. "Innocence" is the wrong terminology. > Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue. I'm not the one who said that people "often" accidentally infringe patents, you were.
distant-uncle 14y ago
At least in the case of trademarks, the potential for defamation gives it some credibility. I suppose from the standpoint of brand confusion alone, trademarks and patents are both equally unethical in that they both do not recognize independent discovery. Copyright is a much more balanced approach imo. Frankly I don't think many in many industries have the balls to admit just how much they would dislike their natural rights trampled on. In my experience, any time the conversation heads in that direction, the affected parties are seen scurrying away. For instance, I reckon a lawyer would reject any notion of limiting their natural right to practice law? Or perhaps even just certain techniques thereof. Really, I think it's time we start carving up territory in the domain of legal tools and tactics. Heck, I say we start carving up territory in just about anything one can think of. At least then the ridiculousness of it all might become apparent to enough weighty makers, that they would see to it that it'd be changed.
- Evbn 14y ago
  Hi, I am changing my name to distant-uncle and embarking on a public campaign of cat torturing all across America. Is that acceptable?
  - distant-uncle 14y ago
    Lol that would be highly unethical. More seriously though, names are not people. Corporations are people, my friend. Oh and lastly, I do tend to think that on the basis of defamation alone, a reasonable argument for trademarks could be made. Nothing even remotely close to this argument exists for patents.

lukifer 14y ago

Ethics are only one component: there's also the simply criteria of whether the policy meets the desired goal. If an anti-rape law somehow resulted in more rape, having an ethical argument about it would be absurd. The stated goal of patents is not a moral imperative to protect inventors, but rather an economic hack that is meant to incentivize invention for the benefit of society, only benefitting inventors as a side effect. The fact that it is achieving the opposite of its goal means that an ethical discussion is worth having, but mostly irrelevant (see also: the Drug War).

avar 14y ago
There's a very large difference between stated goals and desired goals, the goals you mentioned are all stated goals. If you tried to abolish intellectual property the main opposition wouldn't be parties whose main motivation would be a genuine concern that you'd be de-incentivizing invention for the benefit of society, but rather parties who have a vested interest in the current system for their own benefit.