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I think the real answer is compulsory licensing of patents. Congress thought the ownership of something as trivial as a song was so important they wrote laws t

I think the real answer is compulsory licensing of patents. Congress thought the ownership of something as trivial as a song was so important they wrote laws to compel songwriters to license the performance of a song to any and all comers. Have you ever wondered how bands can "cover" other bands songs? They can because whoever wrote the song is forced by law to give them a license to perform it. Patents need to work the same way. Under current law the liabilities for infringing a patent are completely unbounded. If a potential user of a patent knew beforehand what the cost of using a patent was, they could make some real business decisions.

vbuterin 12y ago
The first step is to stop using the word "compulsory licensing". Compulsory licensing sounds like some kind of crazily authoritarian evil government regulation; if I didn't know what it actually is, and there were no triggers that convinced me the idea is worth taking an hour of my time to research, I would imagine I would instinctively oppose it. The language implicitly accepts that patents are a natural right, and that what it is proposing is an infringement on that right. In reality, of course, it's a limitation on a government-granted monopoly. Nobody is being "forced to give a license"; it's actually the derivative creator who is no longer forced to face unbounded cost when using something which was patented.
- twic 12y ago
  Maybe it could be called something like "licensing by right" or "right-to-use", so casting it as a defence of something positive, rather than the imposition of something negative.
  - Zigurd 12y ago
    Isn't the word "statutory" used in similar contexts? So there would be a "statutory" maximum for, say, individual and total royalty costs in producing some product.
  - asmithmd1 12y ago
    "Right-to-use" sounds like something people could get behind. Congress needs to pass "Right-to-use" patent reform to prevent Saudi oil companies from buying up patents that increase gas mileage and preventing US companies from developing them into products. I don't think this has ever actually happened, but current patent law would allow it.
- rektide 12y ago
  You are hereby compelled to furnish the audience with an alternative less-authoritarian sounding substitution. I compel you to not "compel against" with merely strict negatives, and insist that you provide tenable positive alternates.
  - vbuterin 12y ago
    I would say rename the whole thing to something like "intellectual use tax".
AnthonyMouse 12y ago
> I think the real answer is compulsory licensing of patents. The trouble with compulsory licensing is that it doesn't solve one of the most fundamental problems with software patents, which is how do you set the price? An iPhone is probably covered by some tens of thousand of patents. How much of the value of the iPhone should be attributed to each patent? There are too many patents to spend any real resources evaluating each individual patent; the lawyers fees would surpass the royalties. On the other hand, not looking closely creates a powerful market incentive (which is what has been happening) to file for thousands of low-quality patents, and thwarts the patent incentive to make significant inventions because high-quality patents requiring significant R&D are awarded no additional royalties over the crap. On top of that, circumstances change quickly, and how do you respond to that? If you establish royalties for specific patents one year and the next year the new model comes out which is covered by all the old patents plus thousands of new ones, do the old patent holders get less money for the same patents until the royalties from a patent fall below the cost of filing for one, or does the price of a phone keep going up until they each cost $100,000 and everyone is forced to go back to pen and paper? And what do we do about free software -- percentage of zero and no money for the patent holder or fixed fee and free software ceases to exist? Compulsory licensing can't fix software patents. They probably can't be fixed. The patent system was never designed to apply to products with zero marginal cost and a combinatorial explosion of patent liability.
- evunveot 12y ago
  We could apply a kind of value-added tax to every good sold that might possibly be encumbered by patents, say 5%, put that money in a pool overseen by a special court, then let patent-holders file with the court to claim a portion of the money based on what products their patent applies to and how important it is relative to the other patents that apply. The other patent-holders can then file challenges if they think they're getting short shrift. The filing fees should float such that it covers the costs of the entire system.
  - leoc 12y ago
    One nice thing about such a system is that would give the holders of non-trivial patents a direct interest in demanding a high bar for patentability, because other people's trivial or obvious patents would be directly taking a slice out of their revenues.
noonespecial 12y ago
I think a better way that might treat copyright and patents equally well is to make it a continuous act of will and treasure to keep things from the public. Right now, the default state of a copyrighted work like you mention is essentially automatic eternal restriction. Patents, once issued (for little relative cost) remain in force for more than a decade with no effort required for upkeep. Restricting "intellectual property" from public use should require exponentially increasing effort/cost as time goes on. I think this would allow the system to automatically discover the value of the restriction, and help redistribute the cost of maintaining that restriction back to the public which provide it with the force of law to begin with. tl;dr : Each year you hold on to a copyright or patent, you should be required to pay a great deal more to the governing body that grants you that monopoly to keep it in force.
- nitrogen 12y ago
  I don't think this would be very good for small creators. Existing copyright giants could use their current wealth to overwhelm the market, making it impossible for an independent to get any exposure. Then they just wait for the independent to run out of copyright support money, create a derivative work, and never have to spend anything on original writing.
  - noonespecial 12y ago
    It would depend on the protection being nearly free in the short term but becoming very expensive in the longer term. This would allow small upstarts to find out if a market existed and then, if true, capitalize on it and use the profits to fund continued protection as far (and only as far) as the market would bear. If they failed, the patents could not then be acquired by trolls for pennies where they would then pollute the ecosystem for decades. As far as copyrights go, this would neatly solve the orphaned work problem with the added benefit of Disney having a serious think about paying a billion dollar tax to the public in order to keep "Steamboat Willie" in the "Disney Vault".
    - nitrogen 12y ago

vbuterin 12y ago

The first step is to stop using the word "compulsory licensing". Compulsory licensing sounds like some kind of crazily authoritarian evil government regulation; if I didn't know what it actually is, and there were no triggers that convinced me the idea is worth taking an hour of my time to research, I would imagine I would instinctively oppose it. The language implicitly accepts that patents are a natural right, and that what it is proposing is an infringement on that right. In reality, of course, it's a limitation on a government-granted monopoly. Nobody is being "forced to give a license"; it's actually the derivative creator who is no longer forced to face unbounded cost when using something which was patented.

twic 12y ago
Maybe it could be called something like "licensing by right" or "right-to-use", so casting it as a defence of something positive, rather than the imposition of something negative.
- Zigurd 12y ago
  Isn't the word "statutory" used in similar contexts? So there would be a "statutory" maximum for, say, individual and total royalty costs in producing some product.
- asmithmd1 12y ago
  "Right-to-use" sounds like something people could get behind. Congress needs to pass "Right-to-use" patent reform to prevent Saudi oil companies from buying up patents that increase gas mileage and preventing US companies from developing them into products. I don't think this has ever actually happened, but current patent law would allow it.
rektide 12y ago
You are hereby compelled to furnish the audience with an alternative less-authoritarian sounding substitution. I compel you to not "compel against" with merely strict negatives, and insist that you provide tenable positive alternates.
- vbuterin 12y ago
  I would say rename the whole thing to something like "intellectual use tax".

AnthonyMouse 12y ago

> I think the real answer is compulsory licensing of patents. The trouble with compulsory licensing is that it doesn't solve one of the most fundamental problems with software patents, which is how do you set the price? An iPhone is probably covered by some tens of thousand of patents. How much of the value of the iPhone should be attributed to each patent? There are too many patents to spend any real resources evaluating each individual patent; the lawyers fees would surpass the royalties. On the other hand, not looking closely creates a powerful market incentive (which is what has been happening) to file for thousands of low-quality patents, and thwarts the patent incentive to make significant inventions because high-quality patents requiring significant R&D are awarded no additional royalties over the crap. On top of that, circumstances change quickly, and how do you respond to that? If you establish royalties for specific patents one year and the next year the new model comes out which is covered by all the old patents plus thousands of new ones, do the old patent holders get less money for the same patents until the royalties from a patent fall below the cost of filing for one, or does the price of a phone keep going up until they each cost $100,000 and everyone is forced to go back to pen and paper? And what do we do about free software -- percentage of zero and no money for the patent holder or fixed fee and free software ceases to exist? Compulsory licensing can't fix software patents. They probably can't be fixed. The patent system was never designed to apply to products with zero marginal cost and a combinatorial explosion of patent liability.

evunveot 12y ago
We could apply a kind of value-added tax to every good sold that might possibly be encumbered by patents, say 5%, put that money in a pool overseen by a special court, then let patent-holders file with the court to claim a portion of the money based on what products their patent applies to and how important it is relative to the other patents that apply. The other patent-holders can then file challenges if they think they're getting short shrift. The filing fees should float such that it covers the costs of the entire system.
- leoc 12y ago
  One nice thing about such a system is that would give the holders of non-trivial patents a direct interest in demanding a high bar for patentability, because other people's trivial or obvious patents would be directly taking a slice out of their revenues.

noonespecial 12y ago

I think a better way that might treat copyright and patents equally well is to make it a continuous act of will and treasure to keep things from the public. Right now, the default state of a copyrighted work like you mention is essentially automatic eternal restriction. Patents, once issued (for little relative cost) remain in force for more than a decade with no effort required for upkeep. Restricting "intellectual property" from public use should require exponentially increasing effort/cost as time goes on. I think this would allow the system to automatically discover the value of the restriction, and help redistribute the cost of maintaining that restriction back to the public which provide it with the force of law to begin with. tl;dr : Each year you hold on to a copyright or patent, you should be required to pay a great deal more to the governing body that grants you that monopoly to keep it in force.

nitrogen 12y ago
I don't think this would be very good for small creators. Existing copyright giants could use their current wealth to overwhelm the market, making it impossible for an independent to get any exposure. Then they just wait for the independent to run out of copyright support money, create a derivative work, and never have to spend anything on original writing.
- noonespecial 12y ago
  It would depend on the protection being nearly free in the short term but becoming very expensive in the longer term. This would allow small upstarts to find out if a market existed and then, if true, capitalize on it and use the profits to fund continued protection as far (and only as far) as the market would bear. If they failed, the patents could not then be acquired by trolls for pennies where they would then pollute the ecosystem for decades. As far as copyrights go, this would neatly solve the orphaned work problem with the added benefit of Disney having a serious think about paying a billion dollar tax to the public in order to keep "Steamboat Willie" in the "Disney Vault".
  - nitrogen 12y ago