from: http://www.heise-online.co.uk/news/111066
IT news, features and forums at heise online UK
8 July 2008, 15:43
Nobel laureate criticises intellectual property rights system
US economist Joseph Stiglitz[1] has warned that intellectual property rights are stifling innovation. According to the Intellectual Property Watch news service, the professor, who was awarded a 2001 Nobel Prize in Economic Sciences for his work on the relationship of information and markets, said at the opening[2] of Manchester University's Institute for Science, Ethics and Innovation[3] on Saturday that the intellectual property rights regime "closes down access to knowledge". It was clear, he said, that specific restrictions applied particularly in the patent system.
Stiglitz criticised the current approach of treating copyright and patent rights as "intellectual property". Intellectual property, he insisted, is public property and not something to be "owned". It is difficult to prevent others from enjoying its benefits, he said, because it is fundamentally different to, and should not be compared to, the ownership of physical property. This approach creates monopoly power over knowledge that is often abused. Stiglitz gave as an example the current "patent thicket" in software, which results in anyone who writes a successful software program being sued for alleged patent infringements.
Another problem Stiglitz highlighted was that "the social returns from innovation do not accord with the private returns associated with the patent system. The marginal benefit from innovation is that an idea may become available sooner than it might have. But the person who secures the patent on it wins a long-term monopoly, creating a gap between private and social returns". The system is widening the gap between developed countries and developing countries, claimed Stiglitz, who is also known as a critic of globalisation. Medical care in threshold countries is suffering because patent rights are preventing the production of cheaper generic medicines.
The Nobel Prize winner does not believe that the patent system should be abandoned altogether, but sees a possible solution in restricting property rights to defined, tangible areas as well as to specific countries. Tools such as prizes or government funding could be used to promote access to knowledge and spur innovation in areas where there are well-defined objectives - such as a cure for malaria. John Sulston, a Nobel Laureate in medicine, shares Stiglitz's concerns. He expressed his apprehension about the continued trend towards the private ownership of science and innovation, which was funnelling research into areas that were particularly profitable whilst areas less likely to make money were being ignored. IP is an ideological issue in quarters such as the WIPO (World Intellectual Property Organization)[4], Sulston said. Drug companies see any improvements to the patent system as weakening it, but they forget that the system should be a “good servant” - and not elevated to a “theistic level".
In its latest annual report (PDF file)[5], the International Chamber of Commerce (ICC[6]) has now called for the business community to clarify the mechanisms of intellectual property rights for the benefit of the general public. The growing "politicisation" of the patent system and enforcement of copyright is bound to cause concern on the part of those who do not understand the system. The report says that business must focus greater attention on putting forward the very arguments that Stiglitz rejects, namely that commercial copyright not only encourages research and development but it also promotes transparency and the dissemination of knowledge. (Stefan Krempl) /
(ehe[7])
--------------------------------------------------------------------------------
URL of this Article:
http://www.heise-online.co.uk/news/111066
Links in this Article:
[1] http://www2.gsb.columbia.edu/faculty/jstiglitz/
[2] http://www.ip-watch.org/weblog/index.php?p=1129
[3] http://www.law.manchester.ac.uk/research/centres/isei/index.html
[4] http://www.wipo.int/
[5] http://www.iccwbo.org/uploadedFiles/ICC/policy/intellectual_property/pages/IP_Roadmap-2005(1).pdf
[6] http://www.iccwbo.org/
[7] mailto:ehe@heise-online.co.uk
Copyright © 2008 Heise Media UK Ltd.
2008-07-08
Is this an example of things to come? This is why am against the Treaty of Lisbon
From: http://news.bbc.co.uk/2/hi/technology/7495085.stm
UEMEPs back contested telecoms plan.
In the UK some net users have been warned off file-sharing sites European politicians have voted in favour of amendments to telecoms law which campaigners say could be used to curb privacy online and file-sharing.
Digital rights groups in Europe have formed a loose coalition to highlight their opposition to the amendments.
But MEPs have denied that the amendments are aimed at throwing file-sharers off the net.
MEP Malcolm Harbour, who helped oversee the so-called Telecoms Package, said it was "about improving users' rights".
"There has been a great deal of dismay in the committee at the interpretation being put on these amendments," he told BBC News.
"They have nothing to do with copyright enforcement. The interpretation of them is alarmist and scare-mongering and deflects from the intention which was to improve consumers' rights," he said.
But campaigners say one of the amendments - which could allow governments to decide which software can be used on the web - makes it easier to enforce the controversial "three strikes" law which the music industry is keen to use in order to clamp down on file-sharers.
Soviet net
It would see users receive two warnings if they download copyright material without permission, followed by a complete web ban.
Tentative steps towards such a policy are already underway in the UK with the BPI (formerly the British Phonographic Industry) policing file-sharing sites and informing ISPs of people downloading material illegally.
Virgin Media has sent about 800 warning letters to users and the BPI is threatening to take other ISPs to court if they fail to join the campaign.
France is also about to enact laws that penalise persistent file-sharers.
MEPs voted against Europe-wide legislation to tackle the issue in April 2008.
Campaigners say the changes to the Telecom Packet legislation have more fundamental implications for net freedom.
The Foundation for a Free Internet Infrastructure (FFII) warned that they could create a "Soviet internet" on which only software and services approved by governments would be allowed to run.
"Tomorrow popular software applications like Skype or even Firefox might be declared illegal in Europe if they are not certified by an administrative authority," said a FFII spokesman in a statement.
But Mr Harbour claimed the legislation has entirely more innocent intentions.
"It is about new provisions so that users can find out about new services. It will make price comparison sites easier to set up, it will force regulators to give equivalent access to disabled users and enhance emergency services with caller location," he said.
The vote on whether to approve the Telecom Packet, which is a raft of laws aimed at harmonising European telecoms regulation, takes place in September.
UEMEPs back contested telecoms plan.
In the UK some net users have been warned off file-sharing sites European politicians have voted in favour of amendments to telecoms law which campaigners say could be used to curb privacy online and file-sharing.
Digital rights groups in Europe have formed a loose coalition to highlight their opposition to the amendments.
But MEPs have denied that the amendments are aimed at throwing file-sharers off the net.
MEP Malcolm Harbour, who helped oversee the so-called Telecoms Package, said it was "about improving users' rights".
"There has been a great deal of dismay in the committee at the interpretation being put on these amendments," he told BBC News.
"They have nothing to do with copyright enforcement. The interpretation of them is alarmist and scare-mongering and deflects from the intention which was to improve consumers' rights," he said.
But campaigners say one of the amendments - which could allow governments to decide which software can be used on the web - makes it easier to enforce the controversial "three strikes" law which the music industry is keen to use in order to clamp down on file-sharers.
Soviet net
It would see users receive two warnings if they download copyright material without permission, followed by a complete web ban.
Tentative steps towards such a policy are already underway in the UK with the BPI (formerly the British Phonographic Industry) policing file-sharing sites and informing ISPs of people downloading material illegally.
Virgin Media has sent about 800 warning letters to users and the BPI is threatening to take other ISPs to court if they fail to join the campaign.
France is also about to enact laws that penalise persistent file-sharers.
MEPs voted against Europe-wide legislation to tackle the issue in April 2008.
Campaigners say the changes to the Telecom Packet legislation have more fundamental implications for net freedom.
The Foundation for a Free Internet Infrastructure (FFII) warned that they could create a "Soviet internet" on which only software and services approved by governments would be allowed to run.
"Tomorrow popular software applications like Skype or even Firefox might be declared illegal in Europe if they are not certified by an administrative authority," said a FFII spokesman in a statement.
But Mr Harbour claimed the legislation has entirely more innocent intentions.
"It is about new provisions so that users can find out about new services. It will make price comparison sites easier to set up, it will force regulators to give equivalent access to disabled users and enhance emergency services with caller location," he said.
The vote on whether to approve the Telecom Packet, which is a raft of laws aimed at harmonising European telecoms regulation, takes place in September.
2007-04-24
Carte Blanche criminal law a threat to innovation
PRESS RELEASE -- [ Europe / Economy / Innovation ]
========================================================================
Carte Blanche criminal law a threat to innovation
========================================================================
Strasbourg, 24 April 2007 - Tomorrow, 25 April, the European Parliament
will vote on the first Community criminal law ever, the Criminal
Measures IP directive. Last week a coalition representing European
consumers, innovators and library associations has called on Members of
the Parliament to amend the Criminal Measures IP directive. MEPs of the
Liberal Group (ALDE) now propose to keep essential concepts like
"commercial scale" undefined. Critics warn this will create carte
blanche criminal law, a major threat to legal certainty and innovation.
An alliance of BEUC, EFF, FFII and EBLIDA, representing European
consumers, innovators and library associations, strongly oppose certain
provisions of the proposed directive on the enforcement of Intellectual
Property Rights. The proposal is badly drafted. It will antagonize
millions of young Europeans. The provisions defining criminal offences
are so vague as to amount to a threat to civil rights.
The associations ask to limit the scope of the directive to clear cases
of copyright piracy and trademark counterfeiting, and to provide legal
certainty by adopting precise definitions of "on a commercial scale" and
"intentional infringement". Furthermore they ask Parliament to avoid
creating an unprecedented scope of secondary liability for Internet
intermediaries, ICTs, software vendors and a range of legitimate
business activity.
In a new development, the Liberal Group (ALDE) now proposes to keep
"commercial scale" and "intentional infringement" undefined. FFII
analist Ante Wessels: "This is a horrible proposal. How will the courts
deal with the uncertainty? Ultimately the European Court of Justice
(ECJ) may decide, but what will be its decision? This way the Community
would make criminal law without any certainty about the final outcome."
He adds: "It is impossible to assess the impact on consumers, the
industry and innovation. Could we please get our feet back on the
ground? This Community criminal law exercise is running out of hand."
========================================================================
Background information
========================================================================
The Commission introduced the Criminal Measures IP directive, also known
as IPRED2 or Criminal Enforcement directive, as a way to combat
organised crime and terrorism. It would do so by turning all
intentional, commercial scale infringements of all IP rights into a
criminal offence. The problem with this logic is that very few
infringements have anything to do whatsoever with criminal activities,
let alone with terrorism.
Patents are regularly infringed by companies if they think they will not
hold up in court. Trademark confusion happens all the time. An author
plagiarising someone else's story and selling it is not a criminal; that
is a civil offence. Design rights, utility models and database rights
are not substantially examined, which means they are often invalid. In
other words, the directive is using a cannon to fire at a mosquito.
The EP's rapporteur, On. Nicola Zingaretti, has proposed several
improvements to the Commission's text. Some remaining issues are the
inclusion of the unexamined design and database rights in the scope, and
a definition of "commercial scale" which may cover more than intended.
The emotional arguments that the directive is needed to combat
counterfeit medicines and child labour is also dubious. Producing and
selling counterfeit medicines is already a criminal act in all member
states, regardless of whether IPRs are infringed in the process. The
problem of child labour has in itself nothing to do with "intellectual
property" either, and many subcontractors of well-known global companies
have been exposed as making use of child labour in the past.
Using "the children" and "the terrorists" as an argument to pass a
directive which has inherently very little to do with either is
questionable, especially if it has such far reaching consequences. At
the same time, it seems it is often forgotten that infringements not
covered by this directive can still be prosecuted under civil law. Cases
not covered by this directive are not by definition legal or
non-infringing. They are merely cases where the tax payer should not
have to pay for the enforcement of a private party's interests.
========================================================================
Links
========================================================================
* The Coalition letter to MEPs
http://action.ffii.org/ipred2/IPRED_2-Amendments_supported_by_coalition_of_libraries_consumers_and_innovators
* The Coalition compromise amendments (pdf and doc)
http://action.ffii.org/ipred2/FFII_Analysis?action=AttachFile&do=get&target=CompromiseAmendments_FFII_EFF_EBLIDA_BEUC-2.pdf
http://action.ffii.org/ipred2/FFII_Analysis?action=AttachFile&do=get&target=CompromiseAmendments_FFII_EFF_EBLIDA_BEUC-2.doc
* FFII analysis of the tabled amendments
http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments
* ipred.org on Carte Blanche Criminal Law
http://www.ipred.org/
* UK Government position on the tabled amendments
http://action.ffii.org/ipred2/UK_Government_Advice_for_Plenary1
* EFF's Copycrime.eu
http://www.copycrime.eu/
* Permanent link to this press release
http://press.ffii.org/Press_releases/Carte_Blanche_criminal_law_a_threat_to_innovation
========================================================================
Contact information
========================================================================
Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion@ffii.org
(French/English)
Ante Wessels
FFII analyst
+31 6 100 99 063
ante@ffii.org
(Dutch/English)
Jonas Maebe
FFII analyst
jmaebe@ffii.org
(Dutch/English)
========================================================================
About the FFII -- http://www.ffii.org
========================================================================
The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.
_______________________________________________
FFII Press Releases.
(un)subscribe via https://lists.ffii.org/mailman/listinfo/news, or contact media@ffii.org for more information.
========================================================================
Carte Blanche criminal law a threat to innovation
========================================================================
Strasbourg, 24 April 2007 - Tomorrow, 25 April, the European Parliament
will vote on the first Community criminal law ever, the Criminal
Measures IP directive. Last week a coalition representing European
consumers, innovators and library associations has called on Members of
the Parliament to amend the Criminal Measures IP directive. MEPs of the
Liberal Group (ALDE) now propose to keep essential concepts like
"commercial scale" undefined. Critics warn this will create carte
blanche criminal law, a major threat to legal certainty and innovation.
An alliance of BEUC, EFF, FFII and EBLIDA, representing European
consumers, innovators and library associations, strongly oppose certain
provisions of the proposed directive on the enforcement of Intellectual
Property Rights. The proposal is badly drafted. It will antagonize
millions of young Europeans. The provisions defining criminal offences
are so vague as to amount to a threat to civil rights.
The associations ask to limit the scope of the directive to clear cases
of copyright piracy and trademark counterfeiting, and to provide legal
certainty by adopting precise definitions of "on a commercial scale" and
"intentional infringement". Furthermore they ask Parliament to avoid
creating an unprecedented scope of secondary liability for Internet
intermediaries, ICTs, software vendors and a range of legitimate
business activity.
In a new development, the Liberal Group (ALDE) now proposes to keep
"commercial scale" and "intentional infringement" undefined. FFII
analist Ante Wessels: "This is a horrible proposal. How will the courts
deal with the uncertainty? Ultimately the European Court of Justice
(ECJ) may decide, but what will be its decision? This way the Community
would make criminal law without any certainty about the final outcome."
He adds: "It is impossible to assess the impact on consumers, the
industry and innovation. Could we please get our feet back on the
ground? This Community criminal law exercise is running out of hand."
========================================================================
Background information
========================================================================
The Commission introduced the Criminal Measures IP directive, also known
as IPRED2 or Criminal Enforcement directive, as a way to combat
organised crime and terrorism. It would do so by turning all
intentional, commercial scale infringements of all IP rights into a
criminal offence. The problem with this logic is that very few
infringements have anything to do whatsoever with criminal activities,
let alone with terrorism.
Patents are regularly infringed by companies if they think they will not
hold up in court. Trademark confusion happens all the time. An author
plagiarising someone else's story and selling it is not a criminal; that
is a civil offence. Design rights, utility models and database rights
are not substantially examined, which means they are often invalid. In
other words, the directive is using a cannon to fire at a mosquito.
The EP's rapporteur, On. Nicola Zingaretti, has proposed several
improvements to the Commission's text. Some remaining issues are the
inclusion of the unexamined design and database rights in the scope, and
a definition of "commercial scale" which may cover more than intended.
The emotional arguments that the directive is needed to combat
counterfeit medicines and child labour is also dubious. Producing and
selling counterfeit medicines is already a criminal act in all member
states, regardless of whether IPRs are infringed in the process. The
problem of child labour has in itself nothing to do with "intellectual
property" either, and many subcontractors of well-known global companies
have been exposed as making use of child labour in the past.
Using "the children" and "the terrorists" as an argument to pass a
directive which has inherently very little to do with either is
questionable, especially if it has such far reaching consequences. At
the same time, it seems it is often forgotten that infringements not
covered by this directive can still be prosecuted under civil law. Cases
not covered by this directive are not by definition legal or
non-infringing. They are merely cases where the tax payer should not
have to pay for the enforcement of a private party's interests.
========================================================================
Links
========================================================================
* The Coalition letter to MEPs
http://action.ffii.org/ipred2/IPRED_2-Amendments_supported_by_coalition_of_libraries_consumers_and_innovators
* The Coalition compromise amendments (pdf and doc)
http://action.ffii.org/ipred2/FFII_Analysis?action=AttachFile&do=get&target=CompromiseAmendments_FFII_EFF_EBLIDA_BEUC-2.pdf
http://action.ffii.org/ipred2/FFII_Analysis?action=AttachFile&do=get&target=CompromiseAmendments_FFII_EFF_EBLIDA_BEUC-2.doc
* FFII analysis of the tabled amendments
http://action.ffii.org/ipred2/Plenary1_Tabled_Amendments
* ipred.org on Carte Blanche Criminal Law
http://www.ipred.org/
* UK Government position on the tabled amendments
http://action.ffii.org/ipred2/UK_Government_Advice_for_Plenary1
* EFF's Copycrime.eu
http://www.copycrime.eu/
* Permanent link to this press release
http://press.ffii.org/Press_releases/Carte_Blanche_criminal_law_a_threat_to_innovation
========================================================================
Contact information
========================================================================
Benjamin Henrion
FFII Brussels
+32-2-414 84 03 (fixed)
+32-484-56 61 09 (mobile)
bhenrion@ffii.org
(French/English)
Ante Wessels
FFII analyst
+31 6 100 99 063
ante@ffii.org
(Dutch/English)
Jonas Maebe
FFII analyst
jmaebe@ffii.org
(Dutch/English)
========================================================================
About the FFII -- http://www.ffii.org
========================================================================
The FFII is a not-for-profit association registered in twenty European
countries, dedicated to the development of information goods for the
public benefit, based on copyright, free competition, open standards.
More than 850 members, 3,500 companies and 100,000 supporters have
entrusted the FFII to act as their voice in public policy questions
concerning exclusion rights (intellectual property) in data processing.
_______________________________________________
FFII Press Releases.
(un)subscribe via https://lists.ffii.org/mailman/listinfo/news, or contact media@ffii.org for more information.
2007-01-23
New Blow To SCO
Forbes.com
Technology
New Blow To SCO
Daniel Lyons, 01.19.07, 10:15 AM ET
SCO Group suffered another setback in its lawsuit against IBM over the Linux operating system on Thursday. A judge tossed out SCO's motion alleging that International Business Machines destroyed crucial evidence in the case.
SCO (nasdaq: SCOX - news - people ) first mentioned the "spoliation" allegation in a filing last summer. In September, SCO made the claim official, when it filed a motion. The move looked like a kind of Hail Mary pass in a case that appears to be growing ever more desperate for SCO.
SCO, of Lindon, Utah, sued IBM (nyse: IBM - news - people ) in March 2003, claiming that IBM took code from Unix, for which SCO claims to hold some copyrights, and put it into Linux, a similar operating system that is distributed at no cost.
The case has angered fans of Linux. If SCO were to prevail, this could cause problems not only for IBM but for Linux distributors like Novell (nasdaq: NOVL - news - people ) and Red Hat (nasdaq: RHAT - news - people ), as well as Hewlett-Packard (nyse: HPQ - news - people ), which has built a booming business around Linux. The case also could cause problems for thousands of companies worldwide, including Web titans Google (nasdaq: GOOG - news - people ) and Amazon (nasdaq: AMZN - news - people ), which use Linux in their data centers.
The case has not gone well for SCO. Earlier this year, Magistrate Judge Brooke C. Wells of the U.S. District Court in Utah tossed out two-thirds of SCO's claims against IBM because SCO had refused, after repeated requests, to provide specific details about which lines of code allegedly were stolen.
Brent Hatch, an attorney who represents SCO, told Forbes last summer that one reason SCO had been unable to produce that evidence was that IBM had instructed its programmers to destroy code after SCO filed its lawsuit.
On Thursday, however, Judge Wells denied SCO's motion, claiming that any code that once existed on IBM programmers' machines should still be available in a code management database that IBM maintained.
The judge did, however, rule in favor of SCO on another issue, when she denied an IBM motion seeking to obtain financial records of one of SCO's expert witnesses.
A SCO spokesman declined to comment. IBM would not comment beyond stating, "We prefer to let the judge's ruling speak for itself."
The case is scheduled for trial in 2008. But first, a related case, SCO v. Novell, will have to be decided.
At stake in that action is whether SCO even owns the copyrights it claims IBM has infringed upon. Novell argues that it owns the copyrights to Unix, and that SCO does not.
If SCO loses its case against Novell, its case against IBM may fall apart completely.
The Novell case is scheduled for trial in September.
Link:
http://www.forbes.com/markets/2007/01/19/sco-ibm-linux-tech-cz_dl_0119sco.html
Technology
New Blow To SCO
Daniel Lyons, 01.19.07, 10:15 AM ET
SCO Group suffered another setback in its lawsuit against IBM over the Linux operating system on Thursday. A judge tossed out SCO's motion alleging that International Business Machines destroyed crucial evidence in the case.
SCO (nasdaq: SCOX - news - people ) first mentioned the "spoliation" allegation in a filing last summer. In September, SCO made the claim official, when it filed a motion. The move looked like a kind of Hail Mary pass in a case that appears to be growing ever more desperate for SCO.
SCO, of Lindon, Utah, sued IBM (nyse: IBM - news - people ) in March 2003, claiming that IBM took code from Unix, for which SCO claims to hold some copyrights, and put it into Linux, a similar operating system that is distributed at no cost.
The case has angered fans of Linux. If SCO were to prevail, this could cause problems not only for IBM but for Linux distributors like Novell (nasdaq: NOVL - news - people ) and Red Hat (nasdaq: RHAT - news - people ), as well as Hewlett-Packard (nyse: HPQ - news - people ), which has built a booming business around Linux. The case also could cause problems for thousands of companies worldwide, including Web titans Google (nasdaq: GOOG - news - people ) and Amazon (nasdaq: AMZN - news - people ), which use Linux in their data centers.
The case has not gone well for SCO. Earlier this year, Magistrate Judge Brooke C. Wells of the U.S. District Court in Utah tossed out two-thirds of SCO's claims against IBM because SCO had refused, after repeated requests, to provide specific details about which lines of code allegedly were stolen.
Brent Hatch, an attorney who represents SCO, told Forbes last summer that one reason SCO had been unable to produce that evidence was that IBM had instructed its programmers to destroy code after SCO filed its lawsuit.
On Thursday, however, Judge Wells denied SCO's motion, claiming that any code that once existed on IBM programmers' machines should still be available in a code management database that IBM maintained.
The judge did, however, rule in favor of SCO on another issue, when she denied an IBM motion seeking to obtain financial records of one of SCO's expert witnesses.
A SCO spokesman declined to comment. IBM would not comment beyond stating, "We prefer to let the judge's ruling speak for itself."
The case is scheduled for trial in 2008. But first, a related case, SCO v. Novell, will have to be decided.
At stake in that action is whether SCO even owns the copyrights it claims IBM has infringed upon. Novell argues that it owns the copyrights to Unix, and that SCO does not.
If SCO loses its case against Novell, its case against IBM may fall apart completely.
The Novell case is scheduled for trial in September.
Link:
http://www.forbes.com/markets/2007/01/19/sco-ibm-linux-tech-cz_dl_0119sco.html
2007-01-21
Richard Stallman against the concept of intellectual property
18th January 2007
I received a number of emails of Richard Stallman, related to the foundational essay on peer to peer that was published in CTheory last year.
Most of his comments focused on possible confusion, mistakes on my part, on the precise differences and commonalities between free software and open source.
He also vigorously challenged my use of intellectual property as a concept, and referred me to the following mini-essay, which summarizes why we should not use this term.
I’m reproducing part of it here, but recommend reading the whole piece.
Richard Stallman:
“It has become fashionable to toss copyright, patents, and trademarks - three separate and different entities involving three separate and different sets of laws — into one pot and call it “intellectual property”. The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
According to Professor Mark Lemley, now of the Stanford Law School, the widespread
use of the term “intellectual property” is a fad that followed the 1967 founding of the World “Intellectual Property” Organization, and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.)
The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias of “intellectual property” suits them.
The bias is enough reason to reject the term, and people have often asked me to propose some other name for the overall category — or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.
Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”–it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term gives that impression.
The term “intellectual property” is at best a catch-all to lump together disparate laws. Non-lawyers who hear one term applied to these various laws tend to assume they are based on a common principle, and function similarly.
Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.
Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it–a price that may be worth paying in some fields and not in others.
Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.
Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!
People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.”
This entry was posted on Thursday, January 18th, 2007 at 4:24 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Links:
http://www.gnu.org/philosophy/not-ipr.html?
http://blog.p2pfoundation.net/2007/01/18/richard-stallman-against-the-concept-of-intellectual-property/
I received a number of emails of Richard Stallman, related to the foundational essay on peer to peer that was published in CTheory last year.
Most of his comments focused on possible confusion, mistakes on my part, on the precise differences and commonalities between free software and open source.
He also vigorously challenged my use of intellectual property as a concept, and referred me to the following mini-essay, which summarizes why we should not use this term.
I’m reproducing part of it here, but recommend reading the whole piece.
Richard Stallman:
“It has become fashionable to toss copyright, patents, and trademarks - three separate and different entities involving three separate and different sets of laws — into one pot and call it “intellectual property”. The distorting and confusing term did not arise by accident. Companies that gain from the confusion promoted it. The clearest way out of the confusion is to reject the term entirely.
According to Professor Mark Lemley, now of the Stanford Law School, the widespread
use of the term “intellectual property” is a fad that followed the 1967 founding of the World “Intellectual Property” Organization, and only became really common in recent years. (WIPO is formally a UN organization, but in fact represents the interests of the holders of copyrights, patents, and trademarks.)
The term carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects. (This analogy is at odds with the legal philosophies of copyright law, of patent law, and of trademark law, but only specialists know that.) These laws are in fact not much like physical property law, but use of this term leads legislators to change them to be more so. Since that is the change desired by the companies that exercise copyright, patent and trademark powers, the bias of “intellectual property” suits them.
The bias is enough reason to reject the term, and people have often asked me to propose some other name for the overall category — or have proposed their own alternatives (often humorous). Suggestions include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for Government-Originated Legally Enforced Monopolies. Some speak of “exclusive rights regimes”, but referring to restrictions as “rights” is doublethink too.
Some of these alternative names would be an improvement, but it is a mistake to replace “intellectual property” with any other term. A different name will not address the term’s deeper problem: overgeneralization. There is no such unified thing as “intellectual property”–it is a mirage. The only reason people think it makes sense as a coherent category is that widespread use of the term gives that impression.
The term “intellectual property” is at best a catch-all to lump together disparate laws. Non-lawyers who hear one term applied to these various laws tend to assume they are based on a common principle, and function similarly.
Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.
Copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it–a price that may be worth paying in some fields and not in others.
Trademark law, by contrast, was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying. Legislators under the influence of “intellectual property”, however, have turned it into a scheme that provides incentives for advertising.
Since these laws developed independently, they are different in every detail, as well as in their basic purposes and methods. Thus, if you learn some fact about copyright law, you’d be wise to assume that patent law is different. You’ll rarely go wrong!
People often say “intellectual property” when they really mean some larger or smaller category. For instance, rich countries often impose unjust laws on poor countries to squeeze money out of them. Some of these laws are “intellectual property” laws, and others are not; nonetheless, critics of the practice often grab for that label because it has become familiar to them. By using it, they misrepresent the nature of the issue. It would be better to use an accurate term, such as “legislative colonization”, that gets to the heart of the matter.”
This entry was posted on Thursday, January 18th, 2007 at 4:24 am and is filed under Uncategorized. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.
Links:
http://www.gnu.org/philosophy/not-ipr.html?
http://blog.p2pfoundation.net/2007/01/18/richard-stallman-against-the-concept-of-intellectual-property/
Patent Law Confuses Application with Invention
In this link
(a conservative think tank, home page: http://www.heartland.org/Index.cfm)
http://www.heartland.org/Article.cfm?artId=20531
"I" found:
Patent Law Confuses Application with Invention
Written By: Timothy B. Lee
Published In: IT&T News
Publication Date: February 1, 2007
Publisher: The Heartland Institute
--------------------------------------------------------------------------------
In November, the U.S. Supreme Court heard oral arguments in the case of KSR v. Teleflex. The case presents the High Court with an opportunity to put a damper on abuse of the patent system, reducing a serious drag on one of our nation’s most productive industries.
The poster child for patent reform is NTP Inc., a small firm headed by patent lawyer David Stout. NTP has no employees or products, but last March it was able to extort $612 million from Research in Motion, makers of the wildly popular BlackBerry.
I say “extort” because in the midst of high-stakes negotiations between the firms, the U.S. Patent and Trademark Office took the unusual step of declaring that none of the five patents NTP cited in the case should have been granted. But the wheels of bureaucracy turned too slowly to help RIM. Before the USPTO could formally invalidate the NTP patents, RIM settled to avoid a shutdown of its network.
NTP never alleged that RIM’s BlackBerry technology was derived from NTP’s designs. Rather, NTP claimed that the mere fact that BlackBerrys have the combination of features described in NTP’s patents--essentially, the ability to retrieve email via a wireless connection--was enough to trigger liability. That’s problematic because the law prohibits granting patents that are “obvious,” and the mere idea of checking one’s email via a wireless connection seems quite obvious.
Features in Combination
Unfortunately, the Court of Appeals for the Federal Circuit, which has jurisdiction over patent cases, saw things differently. It held that when a patent covers the combination of two elements, it can be declared obvious only if someone can produce another patent, an academic paper, or other formal documentation that pre-dated the patent application and had a specific “teaching, suggestion, or motivation” to combine the elements in the manner described. Often, no such documentation is available, even for inventions that are widely regarded as obvious.
The result has been a flood of lawsuits based on patents of dubious quality. The software industry has been hit particularly hard. In 2002, Microsoft was sued by a company called Burst.com, which had obtained an extremely broad patent on the concept of streaming multimedia files over the Internet. The patent was little more than a description of basic Internet functionality dressed up in legal jargon, but Microsoft still had to cough up $60 million to settle the case. Burst.com turned their legal guns on Apple in April.
In August, Microsoft was forced to pay more than $140 million for infringing a patent that covered the concept of deterring piracy by asking the user for a registration password. In October, a bond-trading firm won a $38.4 million judgment against a competitor for infringing its patent on the idea of auctioning bonds on the Internet. Apparently, the fact that eBay pre-dated the patent filing was not sufficient to prove the patent was obvious.
Which brings us to November’s oral argument before the Supreme Court. Teleflex holds a patent that covers connecting a car’s gas pedal to its engine throttle electronically, rather than mechanically. The defendant, KSR International, argued that simply connecting two well-understood components was too obvious to merit a patent. The Federal Circuit ruled for Teleflex, holding that without specific documentation describing the connection of a gas pedal to an electric throttle, it could not declare the invention obvious.
That argument was not so well received by the Supreme Court, especially its conservative members. Justice Antonin Scalia called the Federal Circuit’s rule “irrational” and “gobbledygook.” When Teleflex’s attorney noted that his position is supported by the major patent bar associations, Chief Justice John Roberts retorted, “Which way does that cut? That just indicates that this is profitable for the patent bar.” Justice Samuel Alito pointed to the Federal Circuit’s infamous 1999 decision upholding a patent on painting garbage bags to resemble jack-o-lanterns.
These justices are right to be skeptical. By effectively emasculating the obviousness rule, the Federal Circuit has given a green light to the patent law equivalent of ambulance-chasing. Patent attorneys have a strong incentive to file patents on extremely broad concepts like wireless email or Internet video streaming and then wait until another company has the misfortune of inventing a product described by one of their patents. The result is a transfer of wealth from innovative businesses to rapacious patent attorneys.
The Supreme Court should strike down the Federal Circuit’s absurdly lax obviousness rule, so that companies like Apple and Microsoft can focus on building the best products rather than hiring the best patent lawyers.
--------------------------------------------------------------------------------
Timothy B. Lee (tlee@showmeinstitute.org) is a policy analyst at the Show-Me Institute. This article originally appeared in The American, the online magazine of the American Enterprise Institute.
(a conservative think tank, home page: http://www.heartland.org/Index.cfm)
http://www.heartland.org/Article.cfm?artId=20531
"I" found:
Patent Law Confuses Application with Invention
Written By: Timothy B. Lee
Published In: IT&T News
Publication Date: February 1, 2007
Publisher: The Heartland Institute
--------------------------------------------------------------------------------
In November, the U.S. Supreme Court heard oral arguments in the case of KSR v. Teleflex. The case presents the High Court with an opportunity to put a damper on abuse of the patent system, reducing a serious drag on one of our nation’s most productive industries.
The poster child for patent reform is NTP Inc., a small firm headed by patent lawyer David Stout. NTP has no employees or products, but last March it was able to extort $612 million from Research in Motion, makers of the wildly popular BlackBerry.
I say “extort” because in the midst of high-stakes negotiations between the firms, the U.S. Patent and Trademark Office took the unusual step of declaring that none of the five patents NTP cited in the case should have been granted. But the wheels of bureaucracy turned too slowly to help RIM. Before the USPTO could formally invalidate the NTP patents, RIM settled to avoid a shutdown of its network.
NTP never alleged that RIM’s BlackBerry technology was derived from NTP’s designs. Rather, NTP claimed that the mere fact that BlackBerrys have the combination of features described in NTP’s patents--essentially, the ability to retrieve email via a wireless connection--was enough to trigger liability. That’s problematic because the law prohibits granting patents that are “obvious,” and the mere idea of checking one’s email via a wireless connection seems quite obvious.
Features in Combination
Unfortunately, the Court of Appeals for the Federal Circuit, which has jurisdiction over patent cases, saw things differently. It held that when a patent covers the combination of two elements, it can be declared obvious only if someone can produce another patent, an academic paper, or other formal documentation that pre-dated the patent application and had a specific “teaching, suggestion, or motivation” to combine the elements in the manner described. Often, no such documentation is available, even for inventions that are widely regarded as obvious.
The result has been a flood of lawsuits based on patents of dubious quality. The software industry has been hit particularly hard. In 2002, Microsoft was sued by a company called Burst.com, which had obtained an extremely broad patent on the concept of streaming multimedia files over the Internet. The patent was little more than a description of basic Internet functionality dressed up in legal jargon, but Microsoft still had to cough up $60 million to settle the case. Burst.com turned their legal guns on Apple in April.
In August, Microsoft was forced to pay more than $140 million for infringing a patent that covered the concept of deterring piracy by asking the user for a registration password. In October, a bond-trading firm won a $38.4 million judgment against a competitor for infringing its patent on the idea of auctioning bonds on the Internet. Apparently, the fact that eBay pre-dated the patent filing was not sufficient to prove the patent was obvious.
Which brings us to November’s oral argument before the Supreme Court. Teleflex holds a patent that covers connecting a car’s gas pedal to its engine throttle electronically, rather than mechanically. The defendant, KSR International, argued that simply connecting two well-understood components was too obvious to merit a patent. The Federal Circuit ruled for Teleflex, holding that without specific documentation describing the connection of a gas pedal to an electric throttle, it could not declare the invention obvious.
That argument was not so well received by the Supreme Court, especially its conservative members. Justice Antonin Scalia called the Federal Circuit’s rule “irrational” and “gobbledygook.” When Teleflex’s attorney noted that his position is supported by the major patent bar associations, Chief Justice John Roberts retorted, “Which way does that cut? That just indicates that this is profitable for the patent bar.” Justice Samuel Alito pointed to the Federal Circuit’s infamous 1999 decision upholding a patent on painting garbage bags to resemble jack-o-lanterns.
These justices are right to be skeptical. By effectively emasculating the obviousness rule, the Federal Circuit has given a green light to the patent law equivalent of ambulance-chasing. Patent attorneys have a strong incentive to file patents on extremely broad concepts like wireless email or Internet video streaming and then wait until another company has the misfortune of inventing a product described by one of their patents. The result is a transfer of wealth from innovative businesses to rapacious patent attorneys.
The Supreme Court should strike down the Federal Circuit’s absurdly lax obviousness rule, so that companies like Apple and Microsoft can focus on building the best products rather than hiring the best patent lawyers.
--------------------------------------------------------------------------------
Timothy B. Lee (tlee@showmeinstitute.org) is a policy analyst at the Show-Me Institute. This article originally appeared in The American, the online magazine of the American Enterprise Institute.
2006-02-24
EC: Software is not patentable
Igrid Marson
ZDNet UKMay 24, 2006, 15:25 BST
The European Patent Office will be bound by proposed legislation that will exclude software from patentability, according to the EC, in a move that has startled opponents of software patent
Software patent campaigners were shocked on Wednesday by an apparent change in stance towards software patents by the European Commission.
The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law.
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding."
This statement appears to contradict what the EC said last year — that the EPO would continue to grant software patents that make a technical contribution, despite the European Parliament's decision to reject the software patent directive.
The Foundation for a Free Information Infrastructure (FFII), which has doggedly campaigned against software patents in Europe, was confused at the EC's change of tune.
"I'm stunned," said Pieter Hintjens, the president of the FFII on Wednesday. "Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?"
In the past, software patent campaigners have expressed concerns that the Community Patent legislation would be used by the EC to legalise software patents.
The EC's statement was made in response to a question posed by a Polish MEP, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.
"I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," said Gierek. "Does the Commission still stand by the position set out in... the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
Even if the Community Patent legislation does allow software patents to be invalidated in court, this is not enough, according to the FFII's Hintjens. The EPO should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice (ECJ), he said.
"The proposed Community Patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is not a problem since the ECJ can invalidate the granted patents in infringement cases," said Hintjens.
"That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," he added.
Gierek's question and the EC's full answer can be viewed on the European Parliament's Web site.
Links:
http://agspro.com/php/news/ags/694.php
http://news.zdnet.co.uk/business/legal/0,39020651,39270929,00.htm
ZDNet UKMay 24, 2006, 15:25 BST
The European Patent Office will be bound by proposed legislation that will exclude software from patentability, according to the EC, in a move that has startled opponents of software patent
Software patent campaigners were shocked on Wednesday by an apparent change in stance towards software patents by the European Commission.
The European Commission said last week that computer programs will be excluded from patentability in the upcoming Community Patent legislation, and that the European Patent Office (EPO) will be bound by this law.
"The EPO would... apply and be bound by a new unitary Community law with respect to Community patents," said the EC in a statement. "The draft Community Patent regulation confirms in its Article 28.1(a) that patents granted for a subject matter (such as computer programs), which is excluded from patentability pursuant to Article 52 EPC [European Patent Convention], may be invalidated in a relevant court proceeding."
This statement appears to contradict what the EC said last year — that the EPO would continue to grant software patents that make a technical contribution, despite the European Parliament's decision to reject the software patent directive.
The Foundation for a Free Information Infrastructure (FFII), which has doggedly campaigned against software patents in Europe, was confused at the EC's change of tune.
"I'm stunned," said Pieter Hintjens, the president of the FFII on Wednesday. "Does the Commission now accept that the EPC rules do actually rule? Or have I misunderstood something?"
In the past, software patent campaigners have expressed concerns that the Community Patent legislation would be used by the EC to legalise software patents.
The EC's statement was made in response to a question posed by a Polish MEP, Adam Gierek, in April. Gierek asked whether the Community Patent legislation would ratify the EPO's current practice of granting software patents.
"I am concerned about European Patent Office (EPO) practices which are undermining the social acceptability of the patent system, with patents being granted for solutions that are not patentable under the current law," said Gierek. "Does the Commission still stand by the position set out in... the proposal for a Council regulation on the Community patent, namely that the case law which the EPO developed for the European patent will apply to the Community patent?"
Even if the Community Patent legislation does allow software patents to be invalidated in court, this is not enough, according to the FFII's Hintjens. The EPO should offer an independent appeal process, rather than forcing companies to pursue a costly legal case at the European Court of Justice (ECJ), he said.
"The proposed Community Patents will be granted by the EPO: a non-accountable, non-Community organisation, with no independent appeal possible. The Commission says this is not a problem since the ECJ can invalidate the granted patents in infringement cases," said Hintjens.
"That is however only true if it comes to civil litigation, which is often too expensive for SMEs, forcing them to pay for a licence. Therefore software patents not yet taken to court will impose an enormous burden on the industry," he added.
Gierek's question and the EC's full answer can be viewed on the European Parliament's Web site.
Links:
http://agspro.com/php/news/ags/694.php
http://news.zdnet.co.uk/business/legal/0,39020651,39270929,00.htm
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