Federal Court Invalidates Breast Cancer Gene Patent

The American Civil Liberties Union sued the genetic testing company Myriad Genetics over its patents on the BRCA1 and BRCA2 gene variants that are strongly associated with hereditary forms of breast cancer. As the Economist reports:

On March 29th the New York District Court made a ruling that, taken at face value, turns America’s approach to the patent protection of genes on its head. A coalition led by the American Civil Liberties Union (ACLU) had challenged the very basis of Myriad’s patents. The nub of the case was this question: “Are isolated human genes and the comparison of their sequences patentable things?”

Until now, the answer had been “Yes”. But Robert Sweet, the presiding judge, disagreed, at least as far as the BRCA genes are concerned. After weighing up Myriad’s arguments, he ruled: “It is concluded that DNA’s existence in an ‘isolated’ form alters neither this fundamental quality of DNA as it exists in the body nor the information it encodes. Therefore, the patents at issues directed to ‘isolated DNA’ containing sequences found in nature are unsustainable as a matter of law and are deemed unpatentable subject matter.” Mr Sweet reasoned that DNA represents the physical embodiment of biological information, and that such biological information is a natural phenomenon.

As a rule, patents are not granted for rules of nature or naturally occurring phenomena, but the American patent office has allowed genes to be patented if they are isolated and “purified.” Perhaps no longer, if this decision is upheld. The ACLU gleefully declared that this ruling “marks the first time a court has found patents on genes unlawful and calls into question the validity of patents now held on approximately 2,000 human genes.”

GenomeWeb quotes ACLU attorney Chris Hansen as saying:

"Today’s ruling is a victory for the free flow of ideas in scientific research. The human genome, like the structure of blood, air or water, was discovered, not created. There is an endless amount of information on genes that begs for further discovery, and gene patents put up unacceptable barriers to the free exchange of ideas."

Hansen is making the argument that gene patents have created an anti-commons that is impeding important research. But is that so? I looked into the issue three years ago and could find little empirical support for the ...

... concern that the over-proliferation of patents, instead of encouraging innovation, is stifling it. This argument achieved prominence in an influential 1998 article published in Science by two University of Michigan law professors, Michael A. Heller and Rebecca S. Eisenberg. Heller and Eisenberg worried that the privatization of biomedical research "promises to spur private investment but risks creating a tragedy of the anticommons through a proliferation of fragmented and overlapping intellectual property rights."

By "anticommons," they meant a situation in which the existence of a large number of intellectual property rights applicable to a single good or service unduly retards or even prevents its provision. The blockage to innovation would occur because of high transaction costs, the conflicting goals of various intellectual property owners, and cognitive biases in which owners overvalue their own patents, undervalue others' patents, and reject reasonable offers.

As evidence for a biomedical anticommons, analysts regularly cite the high profile case of "probably the most hated diagnostics company," Myriad Genetics.

As evidence against the existence of a research anti-commons, I cited a number of studies by the National Academy of Sciences and I further noted that ...

... in 2006, Nature Biotechnology published a review (free registration required) of the academic literature on the existence of a research anticommons. The review concluded that "among academic biomedical researchers in the United States, only one percent report having had to delay a project and none having abandoned a project as a result of others' patents, suggesting that neither anticommons nor restrictions on access were seriously limiting academic research." Worryingly, the review noted there was evidence that secrecy was growing among academic researchers. However, patent issues do not seem to be fueling this secrecy. One study suggested that increased academic research secrecy arises chiefly from concerns about securing scientific priority (scientific competition) and the high cost and effort involved in sharing scientific materials and data.

In 2007, the American Association for the Advancement of Science (AAAS) released a report, International Intellectual Property Experiences: A Report of Four Countries, which surveyed thousands of scientists in the U.S., Germany, the U.K. and Japan to assess their experiences in acquiring, using, or creating intellectual property. The AAAS study found "very little evidence of an ‘anticommons problem.'" As Stephen Hansen, the director of the AAAS study, noted in a press release, "All four studies suggest that intellectual property rights had little negative impact on the practice of science."

Perhaps there is newer and better evidence for a research anti-commons. I will look into it again and report back.

In any case, since this federal court ruling will undoubtedly be appealed, it is not the last word on the validity of gene patents. As GenomeWeb reports:

William L. Warren, partner at Sutherland Asbill & Brennan, believes this is a “poor decision that may have negative short-term implications for financing in the biotechnology sector, and hence the development of new diagnostics and therapeutics, until it is overturned by the U.S. Court of Appeals for the Federal Circuit in the next one to two years.

Go here for the Economist's reporting and here for GenomeWeb's.

Disclosure: I am still a member of the ACLU.

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  • ||

    It's a gene, a naturally occuring molecule that millions of people posess and have done so for millenia. Myriad Genetics did not invent it, they merely isolated it. They are free to patent any discoveries or processes used to isolate the gene, but the gene itself is in the public domain.

  • Kroneborge||

    Agreed. The pertient question isn't whether people are not getting access to data, it's whether you can patent the thing in the first place.

    Because the gene isn't something created, you can't patent it. You can patent all types of processes that relate to it.

  • ||

    IP is about owning peoples brains and what they do with them...example

    I here a song, I like it and sing it...then i use it in athe commercial I make...the music company who has lawyers who have made contracts for the original artists to sign then calls me up and says I cannot use the ideas in my head the way I want to anymore...even if it is 100% peaceful and even though I am not taking any tangible things from other people.

    I refuse to cooperate and the record company has it's well paid government thugs come over and arrest me for using the ideas in my head.

    Seeing IP in this light, it is not surprising that companies and the government now want to claim that they actually own my fucking DNA and have MORE of a right to it than I do.

  • Another Phil||

    Boo hoo. Write your own goddamn song, parasite.

  • ||

    If the song in your head is orignial material, you should copyright it and license it to a company for use in their commercial. Then you get the money.

    Your scenario is true is if the song in your head is someone elses, or your obviouly ripping off someone else.

  • ||

    Yeah, you should have the government wage a magic wand so that you can control other people's expression and economic activities too! We can all get in on the butt fuckery train!

  • ||

    lol

  • Kroneborge||

    Actually IP is about people owning what they made with their own brains. Thus IP is perfectly reasonable when you create a new song, but not reasonable if you try and CR a song someone else created.

    Thus you can't patent a gene that someone else (God?) created.

  • ||

    "Kroneborge|3.30.10 @ 1:57PM|#
    Actually IP is about people owning what they made with their own brains. "

    so you think the caveman that invented fire should have been able to use the government and his lawyers to stop everyone else from ripping off his idea?

  • Kroneborge||

    I think the caveman should have been able to patent a certain process for creating fire for the lenth of time a patent runs.

  • ||

    ""so you think the caveman that invented fire... ""

    Do you really think that the caveman invented fire?

  • Kroneborge||

    Please read my statement again. I didn't say anything about a Caveman inventing fire.

    I said that a caveman that invented a certain process for creating fire could patent that process. The caveman couldn't patent fire.

    So if a caveman invented a match, yes that could be patended.

  • The Vomiteer||

    Note to self: Stop efforts towards patenting vaginas.

  • ||

    I agree.

  • ||

    but the gene itself is in the public domain

    Fuck that. I own my genes. My DNA is unique and I own it. Chapters of a book I wrote are not in the public domain anymore than the whole book itself.

  • ||

    SugarFree: You, of course, own your own genes, but do you own the diagnostic test created by someone else that enables you to find out what your genes actually are and what they are likely to do?

    In any case, there are legitimate questions about a genetic patentability, but I suggest that H&R readers think about two issues: (1) have gene patents created an anti-commons as alleged? And (2) the broader issue of whether or not patents are useful -- the idea is that patents are used to bribe inventors into telling the rest of us how they achieve something so that later inventors can use the information to make new and better inventions. Patents aim to prevent us from living in a trade secret world (which would be an actual anti-commons). In fact, the patent system operates somewhat like the system of scientific disclosure through which researchers obtain recognition and priority for a discovery.

    "The patent system... added the fuel of interest to the fire of genius, in the discovery and production of new and useful things." Abraham Lincoln, Second Lecture on Discoveries and Inventions (Feb. 11, 1859)

  • ||

    I think being able to identify a process by which a gene can be found is patentable, but I don't know if it has the force of uniqueness that patent law requires. And it certainly doesn't give any claim on the gene itself.

    Tombaugh discovered Pluto which exists without any contribution on his part, but that doesn't mean that he owns it. Pluto exists without any contribution on his part.

  • ||

    well fair enough, but if Tombaugh worked for Monsanto then Monsanto would still own the rights to Pluto and that would be speeding up our innovation unless you can prove there is a anti-commons.

    Lawyers make everything better, even suing lots of people who make stuff that we claim a right to is good if it helps employ more lawyers.

  • ||

    Shut the fuck up, you retarded goddamn troll.

    Peddle your fuckwit IP communism elsewhere.

  • ||

    Physical property is scarce. It cannot be duplicated by the replicating machine I carry around in my head. If my personal replication machine can create something that you thought of you do not all of a sudden own me. want to keep it a secret then keep it dumbass...if i see a good idea I'll tell it to who ever the fuck I want. Anything else is slavery.


    I am not communist. We need physical property rights to allocate SCARCE resources.

    I actually believe that we even need property rights during times of terrorism and in emergency rooms too...so I am a good deal more libertarian than some Reason columnists.

    ..are you really silly enough to think 17 years is the optimal patent time length for all IP? of course it isn't. Ok why is it 17 years for a lot of IP?..think that corporate welfare has anything to do with it? ...think big agra or big pharma lobbies congress much? do you think lawyers like the gravy train? and do you think they have any influence in politics in this country? so fucking naive you are....and you can only imagine that I am communist for questioning these things?....really sugar free, you are not usually this dim.

  • ||

    Yes, I'm clearly the dim one. The one who doesn't want to strip the monetary incentive out of creating books and music and art and science just because I have an infantile grudge against TEH CORPORASHUNS!!1!

    Drown in HFCS, shit-for-brains.

  • ||

    people have made a lot of money on music and books without a team of IP lawyers.

    Concerts, speeches, consulting. I write and do consulting...both business would still make money with IP law.

  • ||

    Because you don't have to personally protect everything you do with the explicit threat of violence as long as you have the implicit threat legal action. You know, just like how the existence of the police means you don't have to leave the house armed to the teeth with a phalanx of bodyguards.

    Anarchist or communist, but stop calling yourself a libertarian.

  • ||

    There are plenty of industries that exist with the constant threat of competition and they do just fine. We call this competition, CAPITALISM.

  • ||

    There was books, music, and science before patent laws. There are plenty of books on the subject that argue that innovation occurs in the absence of copyright and patent protections.

  • MJ||

    "We need physical property rights to allocate SCARCE resources."

    You believe creativity is NOT a scarce resource?

  • ||

    Does my use of creativity take away from your creativity?

  • MJ||

    If you are using the product of my creativity, then you are being derivative, not creative. If you are using the product of my creativity without paying me when I am trying to sell that product then you are taking from my livelihood, and taking away my incentive to create. So the answer is: Yes.

    If I and others like me who have genuine creativity have no incentive to create, where does that leave the parasitic hacks like you?

  • The Vomiteer||

    SugarFree: You, of course, own your own genes genitals, but do you own the diagnostic test created by someone else that enables you to find out what your genes genitals actually are and what they are likely to do?

    FIFY

  • ||

    You have to admit that Scientists pay more to use patented technology, which is money that could go towards more scientific advancement. Plus there are all of the negative effects of monopolization in the economy. At some point we have to really look at this issue.

  • cynical||

    As a whole, maybe, but when it comes to individual genes, definitely not. Unless you've got some mutations, it's a safe bet that your parents, at the very least, could claim prior art.

  • mr simple||

    I disagree. I'm hoping my patents come through for sugar, the figure-four leg lock, and the harmonic minor scale.

  • The Vomiteer||

    I call dibs on the melodic minor!

  • qwerty||

    Agreed J sub D

    OMG, I actually agree with the ACLU!

  • ||

    Your pro Intellectual Property arguments are not as persuasive asStephen Kinsella's Against IP

    The Reason folks in general come off as arguing for corporate welfare, however it would be interesting to see a real debate between you guys or your corporate sponsors.

  • Chrispy||

    I don't agree that Reason regularly argues for corporate welfare. This particular article comes sadly close though.

  • ||

    I agree with Chrispy.

  • cynical||

    I'm not sure that there is across the board agreement on IP among the Reason writing staff. Definitely not among the commentariat.

  • hurly buehrle||

    I had to look twice at the accompanying picture. My first thought was: why is an iPod ad relevant to this story?

  • ||

    It's stories like this that keep me from joining the ACLU.

  • robc||

    Huh, this is the stuff they seem to do right.

    Now, if they only cared as much about my firearm civil liberties (which really, my state does a damn good job of not stepping all over, but this August I have to travel thru your state and to Wisconsin and those two states absolutely blow on gun rights).

  • ||

    Intelluctual property is the result of the labor of the mind. If you don't want government to defend that property, then call yourself an anarchist (you only own what you can personally defend) or a communist (everyone owns everything in equal proportion.)

  • ||

    Nobody can own anyone else's mind. That isn't the issue here. Ideas aren't really a product, because it is impossible to steal them. Theft means that I deprive you of the use of something that was yours. When I use your idea, you are in know way less able to use it. You're less able to make money off of it, but that is different.

  • kinnath||

    You really have no fucking clue what is or is not covered by US IP laws.

  • ||

    Um, I was speaking philosophically, not legally, fuck face.

  • ||

    You do know something produced by the mind, is not the mind it's self, don't you?

  • ||

    What is produced by the mind? Okay, throw away the word, "mind." I agree that that idea is yours, but an idea cannot be "stolen" philosophically speaking.

  • kinnath||

    But morally, ethically, and legally it can be.

  • ||

    Legally, I'll grant you as the laws are written today. Ethically? Hmmmmmm. Okay. If I'm not using violent coercion, and I'm respecting the rights of private property that CAN be stolen, what am can I be doing that is "unethical."

    I thought lots of libertarians were against patents. Why am I arguing alone here?

  • robc||

    I thought lots of libertarians were against patents. Why am I arguing alone here

    You arent alone, Im just not in the mood to go thru it again.

  • ||

    Aren't morals and ethics the same thing?

  • kinnath||

    no

  • ||

    Is it a grand canyon of separation?

  • ||

    ""but an idea cannot be "stolen" philosophically speaking.""

    It not about the idea, it's about products produced from the idea. No law prevents me from think about an idea which someone has a patent. It prevents me from sell products made from that idea.

  • ||

    How is it stealing to make a copy? And it doesn't even have to be a copy to be illegal under our current law. If it bares any resemblance to the original, it is automatic theft. Illogical sounding, no?

  • ||

    I'm not talking about stealing a birdhouse you made. We're talking about me building my own birdhouse, and then building a birdhouse for my neighbor and charging a fee without paying you dues.

  • The Vomiteer||

    In the same way that the Supreme Court ruled a zillion years back that going into someone's home and copying their private documents for use as evidence in a criminal trial violates one's 4th ammendment rights just as much as if the original documents had been removed and entered into evidence.

  • ||

    HOw is sharing a file or copying an obvious concept the same as going into somebody's house and flipping through their personal shit? I'm not saying that anybody should go into anyone's house and go through their stuff. We're talking about some pretty basic stuff here.

  • ||

    I agree that that idea is yours, but an idea cannot be "stolen" philosophically speaking.

    Nor does IP law protect ideas. Rather, it protects expressions of ideas.

  • ||

    By telling people that they can't express certain ideas, because somebody else expressed them first?

  • ||

    actually, new ideas do physically alter the mind(synapses and shit)...so Reason's corporate sponsors do want to own your mind if you comprehend one of the ideas that they had their lawyers get the patent on.

  • cynical||

    Interesting. I'm guessing if a squeegee man comes over and wipes down your car while you're parked, you're morally obligated to pay him whatever he asks afterward. I mean, he did labor! And you gained benefit! To tell him to fuck off would be stealing!

    .
    .
    .

    Wait, what's that? He performed that labor of his own free will, without any contract or suggestion that you intended to pay him for it? So, as a result, his "labor" grants him no claim on any property of yours? Ok, I'm glad that's settled.

    Look, the government may have made some promises to artists and creators, nominally on the behalf of the people (though the subversion of that process is brutally evident in ACTA, DMCA, and every copyright expansion of the last century). And that's great for them. Shit, they made lots of promises to union pensioners, and IP expansionists basically fall into the same rent-seeking category. But legality aside, that ethically means shit to me. I've never promised an artist a damn thing.

    When you seek to enforce IP rights, you're demanding that the government place restrictions on the physical property rights of others (and in the case of copyright, their right to free expression). You claim that because you write certain patterns in ink on paper, you gain the moral right to limit, in a very narrow way, the property rights of everyone else that owns ink or paper. Prove it.

    I'm no IP radical, I'm fine with the original terms for patents and copyrights. But let's call them what they are -- the federal regulation of publishers, intended to correct a market failure.

  • ||

    Is reason defending patents? Wow! That's ridiculous.

    We know that patents inhibit science in ways that we can't see. Because all inventions and discoveries depend on other inventions and discoveries, increasing the overall cost of using inventions and discoveries raises the cost of inventing and discovering. Patents in general are self defeating and a bad idea.

  • ||

    ""Patents in general are self defeating and a bad idea.""

    The founding fathers thought it was good enough for the Constituion. Why do you hate the Constitution?

  • ||

    Patents were a noble experiment, and they didn't really pan out as expected. I would love to go back to the system of copyrights and patents as they existed back when the fore fathers wrote the constitution, but instead of scaling them back, they proliferated them to the umpteenth degree until today's patent law no longer resembled that which they had envisioned.

  • ||

    So.

    A lot of things probably didn't pan out the way theu thought. That doesn't change the authorizations written in the Constitution.

  • ||

    I don't imbue the founders or the constitution itself with magic powers. I wouldn't suggest changing the constitution without the proper procedures, but in this case, it should be changed, and I'd hope that we could get the votes necessary to do it. Just because a founder said it, that doesn't make it so. I believe in the constitution as the representation that our ideals are supposed to be above our laws, and that they should be clear and written down to avoid all confusion and unequal treatment of individuals under the law. I don't pretend that the constitution has god like power to make untruth into truth.

  • ||

    ""I don't imbue the founders or the constitution itself with magic powers.""

    Does anyone?

    But it does describe the powers of Congress. Congress can change the IP laws as they see fit. If they wanted to return it back to a max of 20 years they could. You don't need to modify the Constitution to do that.

  • ||

    But you would have to to completely get rid of patents all together, which is what I would suggest.

    Patents are an example of the government granting a monopoly over an industry and backing it up with police muscle.

  • ||

    If anything, we should just let the owners of the patent get a tax credit for 100% of their corporate, income, and sales taxes for any money generated from said patent for 5 years. Then they get half that for 10 years after. Anyone who has to compete will just have to pay taxes like any other business. I'll relent to being satisfied with that.

  • ||

    wow, tkwelge,

    good idea except IP is about protecting big companies like GE and Monsanto from little companies and using government force to shut people down. We also like ideas that make prices higher...your idea makes prices lower! this is encouraging dog-eat-dog competition! terrible!

    Your idea is too simplistic, not enough lawyers would be involved and 5 years is not near enough time...we need to make people pay more and slow down innovationf or longer.

  • Applederry||

    Your response to this:

    "Patents in general are self defeating and a bad idea."

    was this:

    "The founding fathers thought it was good enough for the Constituion."

    Seems pretty obvious YOU believe they have magic powers.

  • ||

    I guess if you want to call the understanding that inventors getting paid for inventions actually promotes invention as some sort of magic. Then yes. But that's not what I would call magic.

  • ||

    James Watt simply got lucky. The steam engine didn't spring from his brain, it was an accident that occurred while he was working with a device that had been tinkered with for years by several independent tinkerers when he got lucky. His patent on the steam engine slowed its proliferation until Watt's patent expired after about 20 years (as such patents lasted back then).

  • ||

    Patents were a noble experiment, and they didn't really pan out as expected.

    As proven by the collapse of research and technology during the last two centuries.

    Its the New Dark Ages!

  • ||

    You're assuming that just because we experienced a technological boom over the last 2 centuries, that patents must be the reason. Read, "A Farewell to Alms," which attempts to figure out what exactly was the driving force of the industrial revolution. There is a whole chapter explaining how patents had little to do with the major advancement of humanity that was the Industrial Revolution. It just mathematically can't be responsible. The author did some meticulous work to prove this, and I can't type it all here.

  • The Vomiteer||

    "You're assuming that just because we experienced a technological boom over the last 2 centuries, that patents must be the reason"

    I took RC as saying that they didn't inhibit the boom.

  • robc||

    Maybe the boom would have been bigger without them.

  • ||

    It's impossible to tell. However, we know it lead to much more monopolization then and today.

  • Kroneborge||

    "We know that patents inhibit science in ways that we can't see. "

    Citation needed.

    I would argue that patents and copyrights increase science.

    For example, I do music production in my spare time, I do this in the hope of making a hit song and getting crazy rich. I would NOT put that amount of time and effort into it if I couldn't protect my investments and reasonable expect to get a return off it (if people are willing to buy it of course).

    Same applies to research into Pharma etc. People don't spend billions on research if there isn't a hoped for return.

  • ||

    There are other ways to make money from inventions other than litigation and monopoly. The company that invented a new product would see a high profit margin at first followed by smaller margins as more producers entered the field. However, there are still ways that a producer can differentiate their products even without patents, and most people stick to good brands, especially the ones that invent awesome stuff. There would still be plenty of money to be made off of inventions.

    Shakespeare never received a copyright, and you could just play live. Or maybe we already have enough music, and musicians, for free, so maybe it isn't meant to be a high paying job. If you want money, produce something! Don't litigate.

  • hurly buehrle||

    Yes. See Reznor, Trent.

  • Kroneborge||

    Umm, me producing a new piece of music IS PRODUCING SOMETHING.

    I have created a new something that wasn't there before. Really no different than creating any other type of widget, and worthy of protection from those that would steal it.

    The question isn't just about whether you MUST have a CR to make money. It's about the right to control your own creations.

    how do you figure that you have some type of right to the results of other people's labor and capital just because you feel like it? Because you are to cheap to pay for music?

    Maybe you think you deserve everything for free? Healthcare perhaps?

    You fucking people are all the same. You think you have a right to what other people make and produce, and don't want to pay, or want to make someone else pay for it.

  • robc||

    If you want absolute control of your creation, keep it to yourself.

    You sell me a widget or a song, I might take it apart or remix it. Or, just flat out copy it.

  • robc||

    Once you sell it to me, it aint yours anymore, it is MINE.

  • Kroneborge||

    I believe that's why if you read the agreements when you "buy" software etc, you really aren't buying it, you are purchasing a limited use license.

    You don't own the software etc

  • ||

    If that's what you agree to, fine. But in the absence of patent laws, I'll wait for the knock off that actually allows me to own something. If I decide to be an early adopter, then that is my choice.

  • cynical||

    Since the EULA doesn't pop up until you've already taken ownership of the software, and is attempting to interfere with your legitimate use of your legal property, it's not unreasonable to suggest that any such "agreement" is made under duress, and is invalid.

  • ||

    Shakespeare never received a copyright, and you could just play live.

    Shakespeare's company, the Lord Chamberlain's Men, later King's Men, received a government granted exclusive monopoly to perform his plays in their charter.

    So your example completely contradicts your point.

  • ||

    If it is "unseen" how would I cite it? Anyway, there are tons and tons and tons of scientists and economists and scholars of all kinds who have written on this subject.

    One author uses the example of the steam engine, which I described below.

  • ||

    I guess you hate sampling then?

  • cynical||

    Well, shit, if it serves a positive social good, then by all means let's restrict property rights and intervene in the market to grant monopoly powers to businesses!

    Hey, who needs principles when you're as politically powerful as libertarians?

  • The Vomiteer||

    Bullshit. My brother coached gymnastics back when they first started using spring floors. They were made by Nissen and ran about $2,000.

    After a meet, he happened to be around when a spring floor was being dismantled. He and his partner realized they were just made up of plywood, bolts and springs. Nissen had a patient, but my brother's attorney said that by making a slight modification to the desihn they could produce and sell their own version. They made an improvement on how the panels interlocked. They then (sans their own patent) went on to produce, sell (at half the price of a Nissen floor) and install spring floors in most of the university and gymnastic school gyms all up and down the eastern seaboard and fairly far west of that.

    True story.

  • ||

    The Vomiteer's brother is a communist...he should not have stolen that idea from those people with the government enforced monopoly and made a cheaper product....that was terribly immoral...we need more government enforced monopolies...I hope lwayers come and take his brothers money now that we know he is guilty of stealing the idea.

  • ||

    He did make a shitload of money and reduce Nissen's market share to just above zero.

  • ||

    BTW, I'm The Vomiteer. It came to me at the bus stop this morning when I saw a big splash of vomit right next to the bench.

  • Chrispy||

    Hansen is making the argument that gene patents have created an anti-commons that is impeding important research.
    That's only half of the argument. The stronger portion is that since nobody created genes, they should not be patentable. The second half of this article completely ignores that argument, and is mostly irrelevant.

  • ||

    Ron Bailey, say it ain't so!

  • ||

    If you are just making the legal argument, fine, but pls tell me that you aren't in favor of patents! At least not in their current form....

  • ||

    Of course he is. He is spreading the propaganda that patents increase the rate of technological progress. You don't hear him addressing the argument that patents don't actually reward inventors, they reward the guys with the best/most lawyers.

  • ||

    Nooooooooooooooooo! Oh well, I guess nobody's perfect. Not even on Reason.

  • cynical||

    Even if they invented a gene out of whole cloth, it would properly be a question of copyright, not patent. A gene's basically a program your cells run to manufacture proteins.

    Still, given that a few fuckups on gene copyrights could turn people into criminals for simply existing or reproducing, it's better to drop genetic information from IP protections altogether. It might slow for-profit research a little, but there are worse things.

  • hurly buehrle||

    Bravo to Reason for defending IP law. After doing a quick Wikipedia search on the subject, I fully understand where Ron is coming from. And I should add that that search runs especially smoothly in the Firefox browser I've got open on my Linux box.

  • ||

    +infinity.

  • ||

    Yes, because giving something away for free is exactly the same as not paying for something that you are using that the creator wants to be paid for.

    Like most communists, the notion of consent is utterly lost on you.

  • hurly buehrle||

    Clearly, the sarcasm application on my machine doesn't run well in Wine.

  • ||

    No, SugarFree got your sarcasm. Your problem is that your sarcasm argues against your own point. If Free Software is flourishing under the current IP law, exactly how does that prove that IP law is stifling progress?

    That was Ron Bailey's point-- the "evidence for a research anti-commons" is thin. Inversely, the evidence that patents increase production is also difficult to marshal.

  • ||

    It doesn't prove that it is stifling progress. It is evidence that it is not the fount from which progress floweth. You people are really grasping at straws here.

  • ||

    It's is what is unseen that is important. And actually, scientists SEE the higher costs of patented instruments that makes their research even more costly. I must again mention the monopolization and negative economic effects of patents, also.

  • Kroneborge||

    But at least that research was done in the first place, so that others could pay to use it.

    That's what patents do they incentivize people do do stuff because they have a hope of profit.

    It's one of the bases of the capitalist system.

  • ||

    Profits exist without patents, but monopolization doesn't. Patents don't even work in many cases, and companies still manage to make money in the cases where it doesn't. And they still innovate!

  • ||

    The Vomiteer,
    I'm on to you, people that read Bastiat are not welcome here...we prefer the real serious intellectuals like David-Smear-Job-Weigel, Cold-Warrior-Moynihan, Mandated-Breathalyzers-for-all-Chapman and Tucker-the-pimp-Carlson.

  • hurl buehrle||

    Well, it's apples vs. oranges, if you're contrasting the IP issues in biotech against those in software. Low barriers to entry make it difficult for IP to really hamper open-source developers; it's more effective in biotech insofar as bringing a product to market requires a massive commitment of resources. But, as you say, arguing either side involves a lot of conjecture.

    Mostly, though, I was just trying to be funny.

  • ||

    hurl buehrle,

    That was not really pointed at you, but rather the IP commie who liked your post for all the wrong reasons.

  • ||

    Explain how I am an "IP commie." Define the concept for me, please.

  • ||

    You believe that ideas are not property and either cannot be owned or are owned by everyone equally.

    IP commie.

  • robc||

    You believe that ideas are not property

    Ideas are property. And once I think the idea, it is mine. If you thought it first and I only thought it because you told it to me or I took apart your widget, doesnt make MY thought any less MINE.

  • ||

    robc,

    But that is a completely different argument than what Twiddledum and dumber are making.

    If I buy Fluffy's book off of CreateSpace, retype the entire thing verbatim, slap "SugarFree" in place his name and then sell it on CreateSpace, am I morally in the right?

  • robc||

    If I buy Fluffy's book off of CreateSpace, retype the entire thing verbatim, slap "SugarFree" in place his name and then sell it on CreateSpace, am I morally in the right?

    Slapping SugarFree on it is morally wrong. But, making photocopies and selling them out of your trunk, with Fluffy's name still on it? I dont have any **moral** problems with that.

  • ||

    Well, I think it's theft. Not all labor is breaking rocks.

  • robc||

    Well, I think it's theft. Not all labor is breaking rocks.

    There is no theft. Fluffy has as many copies of his book as he started with (quite possibly overly-literally).

    Even under today's laws it isnt theft. Copyright infringement is a completely different category of law.

  • ||

    And taxation is just the law of the land. Any amount the 50.00001% decide magically ceases to be yours.

  • ||

    Who is being deprived of an asset or the ability to utilize something? Show me who is being robbed?

  • ||

    The earlier "wild west" days of the internet were much more profitable for many companies than the more heavily patented days of today. This is a fact that proves ID doesn't create profit and value. It just allows it to be monopolized.

  • ||

    The earlier "wild west" days of the internet were much more profitable for many companies than the more heavily patented days of today. This is a fact that proves ID doesn't create profit and value.

    It was also a source of greater losses for many companies than today. It is a fact that demonstrates that getting into the ground floor of a rapidly shifting market and gaining first mover advantages leads to bubble.

    People were complaining about patents and commercial companies monopolizing during those wild west days you lionize. Back then, people were insisting that the real Good Old Days of the Internet, back when it was all government and universities, had already ended because of commercial patents.

  • ||

    All economic growth is created by a cycle of "bubbles" and crashes! The fact that several companies got in on the ground floor, made profit, then collapsed once they outlived their usefulness is a GREAT thing!

    Those other people were against commercialism of any kind. I am not. I love commercialism, just not corporate welfare. The government run days of the internet ended because people found ways to make money off of it, often without patents!

  • ||

    Low barriers to entry make it difficult for IP to really hamper open-source developers; it's more effective in biotech insofar as bringing a product to market requires a massive commitment of resources.

    But at the same time, the fact that, e.g., drug research requires considerable fixed costs means that the logic for patents is stronger in that arena at the same time. Drug companies need monopoly profits in order to make it worthwhile to do research at all. The arguments both pro and con have more weight.

  • ||

    So you're saying that we need a GOVERNMENT protected monopoly for the public good?

    Maybe private hospitals will group together with eachother to develop drugs to better please their customers and attract more money and PROFIT. There isn't one, government enforced, answer to every problem.

  • Applederry||

    The point is that patents are completely unnecessary. Things like open-source software just show that people will create things without IP law. That should be enough to argue against it regardless of whether it does restrict other inventors.

    Unless, of course, you actually like government butting into these things.

  • ||

    Things like open-source software just show that people will create things without IP law.

    and

    It is evidence that it is not the fount from which progress floweth.

    Incorrect. The GPL's enforceability relies upon IP law; copyrights if not patents. So do most all open-source and free software licenses; they rely on government enforcement of IP law in order restrict who uses the software. Sure, it restricts software in a open-source and free direction, but it definite requires IP law.

    Without any IP law at all, you wouldn't have open-source software, the GPL, or even the BSD. You would have open domain software.

    Though I grant that someone can be in favor of copyright but not patents, you're conflating the two when you just say "IP law."

  • ||

    Err, I mean public domain software. But free software/open source software is not public domain.

  • ||

    Open source software does prove that there are other ways to make money. As a musician, you can play live, too. I don't agree with your view of open source software "requiring" copyright law. It does exist, even for open source software, but that is only because the government has to legally define everything. In what way are open source applications like wikipedia or firefox restricted from being imitated?

  • ||

    We're talking about he ability to replicate products or ideas. I agree that there are lots of muddling laws out there, but that hardly proves that open source applications rely on copyrights and patents TO EXIST.

  • ||

    I agree that there are lots of muddling laws out there, but that hardly proves that open source applications rely on copyrights and patents TO EXIST.

    They rely on copyrights in order to protect their right of "this free software will remain free, and cannot be taken by someone and used to create unfree software."

    Without such protection, there would be fewer people opening their code and willing to contribute to free software. Would hackers and companies be as free in contributing if they knew that someone else would take their code and make it private?

  • ||

    I disagree. IN the absence of copyrights, all applications would be open source (unless they explicitly come with an end user license agreement) which would make such law unnecessary. I think people contribute to open source projects for lots of reasons, not just a guarantee that their contribution won't go to something that mike make money. In fact many open source solutions are used by private companies making a buck, and nobody seems less compelled to contribute because of it.

  • ||

    IN the absence of copyrights, all applications would be open source (unless they explicitly come with an end user license agreement) which would make such law unnecessary.

    Why in the absence of copyrights wouldn't more people just publish closed source software and rely on the difficulty of reverse engineering to protect them?

    I think people contribute to open source projects for lots of reasons, not just a guarantee that their contribution won't go to something that mike make money.

    You fail reading. I didn't say that people would be upset about corporations making money. I said that they would be upset if someone were to "take their code and make it private" and "used to create unfree software."

    Nothing in there about money at all.

  • ||

    I don't agree with your view of open source software "requiring" copyright law. It does exist, even for open source software, but that is only because the government has to legally define everything. In what way are open source applications like wikipedia or firefox restricted from being imitated?

    Firefox is restricted. Read the MPL. You cannot take the source for Firefox and create closed source software from it. This is true for things under the GPL as well.

    Those licenses depend upon copyright and IP law for enforcement. As I said, copyright and patents are different, but they are both part of IP law.

    Below you argue that even private contracts and EULA that restrict people from reselling an idea shouldn't be enforced by the government, if I read you correctly.

    Under such a regime, Firefox's license, and the license of all free software, could not possibly be enforced.

  • ||

    See above. I think that part of moving to a completely open source society means that you'll have to understand that SOMEBODY is going to make a buck from open source contributions. PEOPLE ALREADY DO! You're entire argument falls apart when you consider that open source applications already help companies make more money, and people still contribute. People even contribute to directly for profit open source projects too that don't have such agreements.

  • ||

    You're entire argument falls apart when you consider that open source applications already help companies make more money, and people still contribute.

    Your entire argument falls apart when you realize that I didn't complain about somebody making a buck from open source. I didn't say a word about that at all. I complained about people taking free software and making it unfree and closed source. That's an entirely different complaint.

  • ||

    you'll have to understand that SOMEBODY is going to make a buck from open source contributions. PEOPLE ALREADY DO!

    What the Hell. Please read what I am saying.

    I know and welcome the fact that people make money off of Free Software. I have no problem with that. What I don't like is people taking Free Software and making it unFree, making it closed source.

  • ||

    ""If Free Software is flourishing under the current IP law, exactly how does that prove that IP law is stifling progress?""

    Ever notice that free software has less features than the version that costs.

  • ||

    Ever notice that free software has less features than the version that costs.

    No, not really. It depends on the software really. You are making a bad generalization.

    Open Office is as feature rich as MS Office.

    Linux has more features than Windows.

  • ||

    ""Open Office is as feature rich as MS Office.

    Linux has more features than Windows.""

    I don't think that true on either account. Perhaps you could expand on list of features OO has that MS Office doesn't.

    I can say, the reason I don't use Linux at home is because you can't run most video games without an emulator.

    The generalization aside, most software that you can get for free has a more robustful version at a price.

  • ||

    Perhaps you could expand on list of features OO has that MS Office doesn't.

    1. I said OO is as feature rich as MS Office not that it had more. You even quoted me and still misrepresented what I said re OO v MSOffice. OpenOffice can do anything MS Office can do (other than certain things having to do with proprietary formats like printing to MS Document writer format). And OpenOffice gets updates and bug fixes faster than MS Office. And the cost is $0 vs hundreds of dollars.

    I can say, the reason I don't use Linux at home is because you can't run most video games without an emulator.

    2. Your analogy is whack.
    Many games are written for the windows platform. That isn't a failing of the OS.

    You were talking about the features of the software, not which platform has a larger pool of third party software that works with it.

    Linux as an Operating System has more features built into it than Windows the Operating System does, for example being able to use different window managers(Gnome vs KDE) or a software package manager etc that will automatically go out and download/install third party software for you.

    oh and Firefox is a superior browser to Internet Explorer.

    The generalization aside, most software that you can get for free has a more robustful version at a price.

    Sure there is lots of shareware out there, but that isn't free software. That is an evaluation version of software that has more features enabled once you buy it.

    That's moving the goalposts a bit from your original statement that "free software has less features than the version that costs" (which is what shareware and trial versions technically are)

    I just don't see truly free/open source software having less features in general.

    In some cases yes, in others no, but the OpenSource community does a good job of keeping most software feature rich and keeping up with proprietary versions.

  • ||

    Why do i need anyone's consent to make something in my basement and sell or use it? I'm not depriving the creator of anything, so why do i need his/her consent? You are the one spitting in the face of free activity that doesn't negatively effect anyone else. Unless you consider a reduction of profit, harm, but then all competition would be illegal.

  • ||

    Bravo to Reason for defending IP law. After doing a quick Wikipedia search on the subject, I fully understand where Ron is coming from. And I should add that that search runs especially smoothly in the Firefox browser I've got open on my Linux box.

    Your argument is that all those things work pretty well and have flourished in the current environment (disclosure: my main computing environment at both work and home is in Linux), so therefore IP law isn't really stifling progress, right?

    It is, certainly, much harder to prove a negative, or to demonstrate what wasn't created that might have been. That makes it difficult to either defend or support patents, because we have to compare to a hypothetical.

  • hurly buehrle||

    Fair enough. I work in biotech, so I come up against IP issues all the time. I guess I'm just more conscious of the waste it creates.

  • Obama||

    Did I mention that I have saved or created 15 billion jobs, thus saving the world from the greatest depression evah?

  • ||

    it's better to drop genetic information from IP protections altogether.

    So, if I create a virus that can be used to edit DNA to cure cancer, I can't patent it?

    It might slow for-profit research a little, but there are worse things.

    You realize, of course, that "for-profit research" is the research that actually delivers technology to the market for use?

  • ||

    True, but patents are not the only creator of profit, sir.

  • ||

    PLenty of companies have made money without monopolizing a service. It isn't like better brands that are more dependable and reliable won't be able to differentiate their products.

  • ||

    "Better brands that are more dependable and reliable" are a form of monopoly. Product differentiation is. And patents and copyrights don't in general (though they can in some cases) prevent people from inventing something more dependable and reliable.

  • ||

    It's a form of quasi monopolization in the the theoretical sense, but nobody is restricted from doing anything by people with guns just because a brand is good. With branding producers will have to make their brand good under the constant threat of loss of profit rather than simply relying on the government.

  • ||

    nobody is restricted from doing anything by people with guns just because a brand is good.

    Newsflash: Trademark is part of IP law as well.

    If trademark infringement is illegal, then people absolutely are "restricted from doing anything by people with guns just because a brand is good."

    If trademark infringement is legal, then a "more dependable and reliable" brand name isn't worth much.

  • cynical||

    Trademarks could just as easily be considered under fraud law. And they would do less damage that way, at any rate.

  • ||

    I'm not talking about branding in the sense of trademarks, but i the sense of brand loyalty. Wow, this is going in circles, and people keep going back to the law as it exists today. I'm trying to have a philosophical discussion.

  • kinnath||

    IP is all about utility -- that aspect of "property" that anti-IP libertarians just gloss over.

    Sure, if you steal my hammer I can't use it anymore -- the simpleton's definition of property. But if I can't use my hammer, then I can't build myself a house (using property to generate additional wealth). Or I can't go to work and generate an income.

    Patent laws protect the utility of designs, methods, systems, etc. -- patents protect the ability to generate income or wealth from the sweat of your brow not the sweat of your back.

    The fact that a patented design, method, or system can be replicated ad infinitum without destroying the original does not protect against destroying the utlity of the design, method, or system to the creator of said design, method, or system. In fact, it amplifies the destruction of the utility of the design, method, or system.

  • ||

    "patents protect the ability to generate income or wealth"

    This part is true.

    How does preventing people from using technology without going through a monopolist better utilize a design or concept?

  • ||

    When microsoft first got in on the game, it argued that Netscape had no right to patent a web browser, and the internet flourished. Since then, the laws have been rewritten in ways that allows tech companies to patent everything under the sun in the way of software, and we are still no where near the bubble days of profitability during the dot com boom.

  • ||

    we are still no where near the bubble days of profitability during the dot com boom.

    Once you acknowledge that it's a bubble, you can't say that we should be showing paper profits similar to that during the bubble. That's what bubbles mean. That's like complaining that house prices should be at what they were in that bubble. (Although, yeah, politicians and others do that.)

  • ||

    The economy grows through a process of bubbles and crashes. All economic run ups can be considered "bubbles," but since all value is subjective, most, if not all economic growth can be considered "a bubble." Unless you believe in that sustainability nonsense. A "stable" economy is one that never grows, because people are just producing the same things over and over again.

  • Applederry||

    I'm surprised to actually see people defend patents.

    I thought libertarians were opposed to monopolies, particularly monopolies created and enforced by government force.

    That's all "intellectual property" truly is.

  • ||

    So you oppose the GPL, the BSD license, and all other free software licenses that depend upon copyright and government enforcement?

  • ||

    Many here are actually cosmotarians instad of libertarians....the cosmotarians have a blind spot for corporate welfare.

    The serious thinkers all know that "clingers to property rights" are being "extremist" if they are talking about "special" markets like healthcare and defense and we need to force everyone into paying insurance companies more for the compassionate sake of equality or we need huge taxes to cover the increased need for profits in the military industrial complex.

    However, the cosmotarians who crave approval of the serious thinkers above all else have one "property rights" issue where they stand tall and bravely with their friends at Merck, Monsanto and GE...they all agree that intellecual property must be preserved or we are communist.

    They don't read Stephen Kinsella

    and answer his rebuttals to all the known excuses for th IP system...they just ignore it and call people who disagree with them jew-haters or conspiracy nuts.

    IP law is a government enforced monoply for those who are more politically equal than others, but cosmotarians don't look at it that way...they instinctively use their pre-programmed left-right view of the world(the neo-con part of their brain) to think "if left hate big company then I like big company....must protect big company with government enforced monopoly...higher prices good...this is anti-communism"

    cosmotarians are truly mind controlled beings, I feel bad for them. They almost get it but are oh so far. That is why we can be certain this country will collapse...even many libertarians are in favor of totalitarianism.

  • Ravac||

    I'd be interested in reading Kinsella's monograph. Got a link to a free version?

  • Chrispy||

  • Brian||

    Or, you know, they could be Randites. Rand was incredibly pro-IP in all forms, and considered it the most important form of property.

  • short, fat bastard||

    A simple problem. Most libertarians, but not all, believe that the government should protect private property. So the only issue is whether intellectual and physical properties are equivalent for purposes of government. Pick yes or no, the rest of the conversation falls out from that.

  • EscapedWestOfTheBigMuddy||

    InRe: Patents as bribes for openness.

    This is a consequencalist argument, but I am not opposed to this idea in principle. Further, you have to believe in some kind of legitimacy of government for the idea to be sustainable, but I'm OK with that too.

    Still, there is a time scale issue.

    For the "openness" bought this way to count the monopoly granted has to be shorter than the scale for successfully reverse engineering the process in a trade secrete society.

    Likewise the economic costs of licensing must be less than the costs of (possibly repeated) reverse engineering.

    Both of these conditions are presumably attainable, but they may be functions of time.

    In particular, I think that if you are to allow patents on software algorithms the time scale has to reflect the pace of change in that industry. Think 24 months instead of 20 years: enough time to take advantage of the "first to market" boost, but not enough to hold the whole industry hostage to the the Lempel-Ziv compression used in GIF.

    And even the time scale of industrial innovation has changed since Watt's time. Should a patent on a new variation of the automatic gear box really last 17 years?

    Note, however that the cycle time for new drug invention is still on the order of 10--20 years.

    Any way, just a thought.

  • Kroneborge||

    "In particular, I think that if you are to allow patents on software algorithms the time scale has to reflect the pace of change in that industry"

    This sounds very reasonable to me.

    Long enough to protect profits and encourage innovation, not SO long that it impedes future innovation.

  • ||

    In particular, I think that if you are to allow patents on software algorithms the time scale has to reflect the pace of change in that industry. Think 24 months instead of 20 years: enough time to take advantage of the "first to market" boost, but not enough to hold the whole industry hostage to the the Lempel-Ziv compression used in GIF.

    Agreed, and a very reasonable point. Not all industries operate on the same timescale at all.

  • kinnath||

    We do libertarians turn into communists when the subject turns to IP?

  • ||

    Limewire guilt.

  • troll intern||

    I've heard that some libertarians turn to communists when the subject turns to the peculiar institution of the South.

    Imagine the nerve of the people who think that these agribusiness entrepreneurs should be deprived of necessary capital for their ventures at the behest of a government filled with whiny left-wing activists that believe in shoving their views down other people's throats, regardless of the human consequences. I guess they didn't think of the poor in this country who are going to see the price of textiles rocket, or go without altogether as the cotton industry collapses.

    The hubris of these people galls me -- not just to deprive people of property that they've honestly paid to acquire and to maintain, but to refuse to even offer them fair market value in compensation! It's obviously a violation of the fifth amendment takings clause, as if these radicals cared about the Constitution. These "libertarians" forgot that your right to "human dignity and autonomy" ends at my property line. It starts with taking your Negros, but mark my word, these crypto-communists won't stop until they've nationalized the entire agricultural sector.

  • kinnath||

    Without patents we return to the middle ages when guilds protected trade secrets by murdering people that stole their ideas.

    Anyone here know how to make Damascus Steel?

  • ||

    How so? Like I said, "A Farewell to Alms" rebukes that idea very well.

  • Applederry||

    So your argument is that, without patents, murder will become legal? Or what?

    Do you realize both these guilds you mention and patents have the same goal of restricting knowledge and the use of that knowledge to a small group of people, thereby restricting what inventors have to work with in coming up with even newer ideas?

    Patents ARE the medieval mindset.

  • ||

    So your argument is that, without patents, murder will become legal? Or what?

    His argument, agree or disagree, is that the alternative to patents in the old days was secrecy, because inventors couldn't publicize their results without fear of it being stolen. As an example, the secret to Damascus Steel was lost.

    Secrecy is still used, of course, (think trade secrets and various recipes), and OTOH the culture of secrecy applied even to, e.g., mathematical proofs in those days. Math didn't get patents to protect it, but people still moved away from secrecy.

  • Applederry||

    So you're saying is something invents or creates something, instead of using that to make money in the free market, they will instead hide it in their closet, lest someone discover how they did it?

    Sorry, doesn't make sense. Maybe it did back in the day when the King owned everything, but not in modern society.

  • ||

    So you're saying is something invents or creates something, instead of using that to make money in the free market, they will instead hide it in their closet, lest someone discover how they did it?

    No, he's arguing (not my argument, just explaining it) that if something cannot be easily reverse engineered, then someone will choose to sell the product but not necessarily teach the process behind making it. However, if patents are available, someone may patent their idea, thus ensuring that the knowledge of how to make it would not be lost.

    Not everything is trivial to reverse engineer; Damascus Steel is an example of something that is not.

    Of course one makes a distinction between certain types of patents. There are machine patents, method/process patents, article of manufacture patents, and composition of matter patents. No reason that someone can't approve of some categories of patents but not others.

  • Applederry||

    It still doesn't make sense. How is he going to make his Damascus Steel without letting anyone else know about it?

    If he makes it all himself, then he won't be able to make as much as if he hired on help and since making money is the name of the game he would have to make his secret more available to others, unless his paranoia outweighs his market sense.

  • ||

    If he makes it all himself, then he won't be able to make as much as if he hired on help and since making money is the name of the game he would have to make his secret more available to others, unless his paranoia outweighs his market sense.

    Back in the old days, they told the secret to chosen apprentices and formed guilds that enforced their regulations jealously, as the original poster noted.

    Yes, it was a different society, and it's difficult to extract how much of the different society was a result of and how much was a cause of and how much was independent of the IP law regime. For that reason I don't think that the argument will be settled.

  • Applederry||

    "For that reason I don't think that the argument will be settled."

    There is a way to find out.

    Try it.

    I know it's hard for some people to imagine a world without the government to protect us from the pitfalls of freedom, but it may just turn out for the better.

    Or nothing may change at all (except the government is out of the equation), which is just as good.

  • ||

    If the product cannot be reverse engineered then they company is unlikely to patent it...then they will have a monoply maintanted longer...it only makes sense for them to patent it if they figure they will need the government enforce the monopoly for them.

  • kinnath||

    A patent application is a recipe to build an invention. Many, many people review patent applications to generate new ideas.

    Without patent protection, major companies will put onerous contract clauses on employees to ensure that trade secrets never leave the house. Every fucking widget you buy will come with an enormous end-user license preventing you from reverse engineering it in any way. Corporate laywers will rule the world.

    But hey, that has to be better.

  • ||

    How would such an end user licensing agreement be legal in a world without patents? If patents were illegal, any end user license agreement would just encourage people to steal the idea so that they could replicate it and sell it with no such agreement attatched and corner the market.

  • ||

    How would such an end user licensing agreement be legal in a world without patents? If patents were illegal, any end user license agreement would just encourage people to steal the idea so that they could replicate it and sell it with no such agreement attatched and corner the market.

    Now you're moving past "no government patents" to making it illegal for people to engage in private contract. It's easy to imagine private contracts with non-compete agreements.

    OK, you could say that the government refuses to enforce those sorts of private contracts. That's overturning a bit more than just IP law, though, that's having the government either not enforce all contracts or picking and choosing which contracts will be enforced. (Admittedly, the government currently refuses to enforce some contracts such as those involving slavery.)

  • ||

    I said that even if END USER LICENSE AGREEMENTS WERE ALLOWED, THEY WOULD BE MEANINGLESS, because somebody would just imitate the product without an end user license agreement and reap all of the rewards of the industry. SOme customers might be willing to except end user licensing agreements to be early adopters. However, that is their choice to pay more for the restricted product. I'll wait for the knock off that doesn't force me to sign anything. There, no end to private contracts here. Jesus Christ. This is like swimming in shit river up stream.

  • ||

    I said that even if END USER LICENSE AGREEMENTS WERE ALLOWED, THEY WOULD BE MEANINGLESS, because somebody would just imitate the product without an end user license agreement and reap all of the rewards of the industry.

    Some things are difficult to reverse engineer. People may not be able to easily imitate them. It can be useful for society to have the method for creating something publicly registered and available after a number of years.

    I'll wait for the knock off that doesn't force me to sign anything.

    What if there isn't a knock off?

  • ||

    I said that even if END USER LICENSE AGREEMENTS WERE ALLOWED, THEY WOULD BE MEANINGLESS, because somebody would just imitate the product without an end user license agreement and reap all of the rewards of the industry.

    But IP law, through copyright, enables the GPL. By enabling the GPL, that means that I can take source code that already exists and use it to create something else, instead of having to reverse engineer it and write my own substitute code that has not been as heavily tested first.

    In your world, there would be more closed source code, since people who opened the source couldn't rely on preventing other people from stealing it in violation of license.

  • ||

    Once you put a product on the market, it is usually not terribly difficult to reverse engineer. I think that it would be worth the extra effort, because there would be no barrier to immediate returns other than your own stupidity, and scientists wouldn't have to pay a super premium for technology they need to invent the future, unless they agreed to it via an end user license agreement.

    There will always be a knock off.

  • ||

    Once you put a product on the market, it is usually not terribly difficult to reverse engineer.

    In which case it becomes not very profitable to research things. There's a fixed cost to research. When the cost of reverse engineering is very low, then without patent protection it doesn't make sense to research things, except for that portion of people who just will invent regardless.

    On the one hand, you argue that superior branding provides enough monopoly profits without patents, but on the other hand you claim that reverse engineering a knock off of similar quality is easy. How are these both true?

    scientists wouldn't have to pay a super premium for technology they need to invent the future

    If scientists aren't motivated to invent more by the prospect of monopoly profits, why should they be motivated to invent less by the prospect of paying more for the technology to invent it? You can't have it both ways. You can come up with a more sophisticated argument either pro or con, but the simplistic ones don't work.

  • kinnath||

    You've never read the EULA that comes with any commercial software package have you.

  • Applederry||

    "Many, many people review patent applications to generate new ideas."

    But if they actually USE those ideas, they can be sued by the patent holder. Without patents, they can both review the ideas, and USE them.

    "Corporate laywers will rule the world."

    You say all this as if that isn't how it's already done. In fact, all those things you mentioned DEPEND UPON IP law in order to work.

    So, yeah.

  • kinnath||

    Have you ever read a patent?

    The only thing protected by a patent are the claims. If the claims are poorly written, it is easy to design a solution that peforms a similar function without infringing on the claims.

  • ||

    So what? You're argument is that they'll keep it a secret if they can't patent it. However, if they did, they would run the risk of one of their workers stealing the idea and giving it to someone else (illegal, but hard to prove often), or someone inventing the same product independently and bringing it to market to get in on the ground floor.

  • ||

    However, if they did, they would run the risk of one of their workers stealing the idea and giving it to someone else (illegal, but hard to prove often), or someone inventing the same product independently and bringing it to market to get in on the ground floor.

    Yes, and someone who patents an invention now runs the risk of someone reading the patent and figuring out a way to invent something non-infringing that performs the same solution. Both things can and do happen.

  • ||

    Except that the patent law is an instrument of monopolization.

    The way that the law is written, if your creation bares any resemblance, even in theory, to what somebody has patented, you can't create it. They can search for complimentary inventions that they could make, but they could do that without patent law.

  • ||

    But if they actually USE those ideas, they can be sued by the patent holder.

    Anybody can file a lawsuit, but someone who reads a patent application, says "I have a better idea", and brings it to market without infringing on the patent will will the lawsuit.

  • Applederry||

    If they read a patent on making orange juice and get an idea on how to make a diesel engine, then yes, the lawsuit probably wouldn't fly.

    But if they read the patent and got an idea how to make MORE orange juice with less oranges and less energy used based on the ideas of the patent, it would.

  • ||

    But if they read the patent and got an idea how to make MORE orange juice with less oranges and less energy used based on the ideas of the patent, it would.

    No, it most likely wouldn't. Just because someone gets an idea from reading a patent doesn't make it infringing, and it's far too difficult to prove that the idea came from the patent anyway. In addition, in the real world the infringer would likely have other patents that the original inventor would have infringed, or it would be too difficult and costly and time-consuming to pursue the lawsuit.

  • ||

    So your argument is that patents don't work, but that's good, because everyone thinks that they do. So as long as they keep reporting their patents to allow them to be stolen, the system works.

    The truth is that they do work, and that's the problem. Companies sue eachother all of the time for all sorts of IP infringement, especially as the law is interpreted now.

  • ||

    My argument is that some patents are worth a whole lot, but the vast majority aren't and don't amount to much.

    By protecting the monopoly profits for a short period of time for the very small fraction that are worth a lot, they motivate a lot of people to invent and register their patents.

    I actually think that the old method of paying a fee to renew a copyright could be used for patents. The ones not worth it after a number of years could expire.

  • Applederry||

    This is all just wishful thinking. If patent lawsuits never amounted to anything, no one would bother patenting.

  • ||

    The lawsuits are only filed on the very small number of patents that are extremely valuable. The vast majority are not.

    The patent law encourages people to research more and file tons of patents. Only a small amount are profitable enough to be worthy of lawsuit. People research and invent the others because they dream that it will be a jackpot.

  • ||

    The way that many authors tell it, patent law only kicks in when an industry as matured past a point of explosive innovations. Once there is more money to be made through litigation than innovation, patents really start to work their magic.

  • robc||

    Bad example, the celts were making weapons similar to Damascus steel in the 3rd century BC.

    And nothing would prevent a modern day Damascus Steel company from not patenting their product and keeping a trade secret.

  • kinnath||

    I tell our junior engineers, that if someone can reverse engineer our product, we need to patent it. If it can't be reverse enfineered, then we keep it secret.

  • ||

    If there is money to be made selling it, somebody will sell it. If you keep it a secret, you run the risk of someone selling it first and getting in on the ground floor and capturing customer loyalty.

  • ||

    Simply because something can be sold doesn't mean that it can be reverse engineered easily at all.

  • ||

    NO, but you still run the risk. Plus, one of your own workers could slip the idea to a rival, and if you were unable to prove it in a court of law, your competitor would have the drop on you.

  • ||

    NO, but you still run the risk.

    You do, but it would still shift the appropriate behavior towards secrecy.

    Plus, one of your own workers could slip the idea to a rival, and if you were unable to prove it in a court of law, your competitor would have the drop on you.

    So you're arguing that your preferred change in law would result in a world where businesses would trust their employees less and monitor their behavior more to make sure that they don't slip ideas to rivals? I prefer the rule of law.

    But in any case, at least we appear to agree that a world without patents would be a world with more secrecy and attempts at secrecy by inventors. Sure, secrecy wouldn't always work, and your argument appears to be that that fact would make it superior to patents for society.

  • ||

    Employers will have to hire engineers to exist and make money, so they will take the risk. I think in a modern economy with the right of incorporation, which really didn't exist until fairly recently in human history, any kind of delay simply will allow your competitors to get the drop on you. If they want to turn their company into fort knox, fine, but that still won't prevent them from losing money from competitors. Companies are already secretive as hell, and I don't see that as a problem.

    What did I say that ends Rule of Law?

  • kinnath||

    Do you mop floors for a living?

  • ||

    Do you fucking suck dick for a living?

  • kinnath||

    Did I hurt your feelings?

    You have so many, many wrong ideas on the way the current world works regarding patents and copyright, you simply cannot be working in a high tech field of any kind.

    Go read up on the GNU GPL. They explicitly state they are using the current copyright regime in an attempt to thwart the development of proprietary software from anything that starts with a GPL. The GPL is extremely onerous.

  • Applederry||

    "They explicitly state they are using the current copyright regime in an attempt to thwart the development of proprietary software from anything that starts with a GPL. "

    And you support this?

  • ||

    For my sake, yes, I absolutely support it. That's part of why I use and contribute to Free Software.

  • kinnath||

    Go to GNU, READ THE FUCKING SHIT THAT IS THERE.

    Google "copyleft"

    Do some work on your own.

    Those guys absolutely understand copyright law and the GPL is bullet proof.

  • ||

    They say that, and that is their religious belief, but not everyone feels that way. Most people don't care.

  • ||

    But why should those people who don't care interfere with the right of the people who do care?

  • ||

    THey don't have to. If you only want to contribute to open source applications that can't be used for profit, that if your own religious nonsense. However, I'm willing to contribute to open source projects without such a condition. I'm not messing with anybody's freedom.

  • ||

    Exactly. But if you got rid of patents, you'd try to keep everything secret. Maybe everything would be reverse engineered, maybe not. But people surely would try to keep things secret that they don't now.

  • ||

    And thus society would collapse back into the dark ages? Most scientific developments are a team effort requiring lots of different players over periods of centuries. Everyone who has contributed to open source knows that to get a piece of information, you have to give it. This is why companies will share source codes and then ask open source contributors to help them out. The end of IP would create a true market for information, and since open source is about everyone offering a little something, we'll all have something of value to offer. Under IP the only people who can get value are the ones who run out to the patent office and yell "dibs!"

  • ||

    Everyone who has contributed to open source knows that to get a piece of information, you have to give it.

    Yes, thanks to the GPL and other copyleft licenses.

    This is why companies will share source codes and then ask open source contributors to help them out.

    Companies will share source code because they can put licenses on the code ensuring that other people won't take their source code and make it private, and ensure that improvements to the code make it back to the original company for use.

  • ||

    "Yes, thanks to the GPL and other copyleft licenses."

    NO, thanks to free individuals who are following their own free will. Why does the government have to codify something for it to exist to you?

    "Companies will share source code because they can put licenses on the code ensuring that other people won't take their source code and make it private, "

    In cases, sure. However, they still use open source for things that are the opposite, too. People contribute to things for lots of reasons. Maybe the short term gain outweighs the long term potential losses from not being able to patent something, and it might be worth the trade off considering the cost savings.

  • ||

    Sugar free lets assume IP law is great...we do have it...and we do have a high technology society...it is hardly my biggest worry...but why 17 years? is that optimal?

  • ||

    ya...isn't murder already against the law?

  • ||

    Is the shift key?

  • robc||

    IP is an exception to natural law. It may be an okay idea, it by far isnt the worst thing the government does, and it isnt anywhere near my list of first things to change, but natural law it isnt.

  • EscapedWestOfTheBigMuddy||

    Yep.

    As long as we can afford to worry about this stuff, we're doing pretty well.

    The thing is, the richer and better off we become, the more important these issue will become as well, so we need to have some sense in how we set it up and what we apply it to.

  • robc||

    In libertopia, law would be based on natural law and there would be no IP. If I can think it, I can build it, even if you thought it first.

  • kinnath||

    It will come down to trade secrets and private contracts.

    I don't have a problem with that. But I don't think it will actually make the world more transparent.

  • robc||

    Is the goal to make the world more transparent? I thought it was to make it more free?

  • kinnath||

    A world without IP law would be different than today. It won't be world of open source and information transparency that the jackasses up thread think it will be.

    Major coroprations would impose extremely restrictive employment contracts on knowledge workers -- threats of lawsuits for leaking data -- no-compete clauses if you leave to take another job.

    Engineers will spend lots of time and money to make their products immune to reverse-engineering. Software will be tracked and encrypted keys would be required to execute anything as basic as a spreadsheet.

    But yeah, lots of low end technology would go unprotected because the creators don't have the resources to protecte it and the market value of the technology wouldn't justify it.

  • Applederry||

    So what?

    This is no different from the Drug Warriors arguing legalization will turn all our kids into druggie sex fiends.

    Maybe it will happen. Maybe it won't. Until we actually give it a try we won't know. You're just arguing for the government to maintain the status quo because that's what you're comfortable with.

  • Kroneborge||

    I disagree, I think stealing someone IP's is still stealing.

    Let's take two hypothetical people, one makes widgets, say collectible figurines, the other makes music.

    Now if you stold the first person's widgets, you would be stealing their income and livelyhood, a pretty serious transgression right?

    Now how is it different if you steal(copy without permission) the second persons music?

    Again you are stealing their future income.

  • Applederry||

    If you steal a widget, the person has to create another widget in order to sell it.

    If you "steal" a song, the person doesn't have to create another song in order to sell it.

  • Kroneborge||

    No, you are STEALING the profit from it, just like with a widget. You are preventing the creator from benefiting from the fruits of their labor.

    You don't get to choose how the creator sells their works. You can't make them perform live (which really isn't even possible for a lot of new music).

    Stop trying to justify your theft, because you think you have a "right" to what others produce.

  • ||

    Preventing somebody from reaping potential profit, if they can have the backing of a government guaranteeing their monopoly, hardly represents a loss. Or else all competition would be illegal.

  • ||

    You don't have a natural right to make money by preventing people from acting freely. That is garbage. That is the same logic that people use to tell their neighbors how to live, because they feel like they have a right to see their home value always go up (which isn't guaranteed anyway).

    You don't have a right to earn profit, if you have to use violent coercion to prevent people from doing something independent of your private property (the property that can be actually stolen).

  • ||

    You don't have a right to "theoretically potential profits."

  • robc||

    Bullshit. They dont have future income. They can still sale as many figurines or songs as they want. If you make a commodity, expect to sell it at commodity prices.

    Two weeks ago, I saw Rodrigo y Gabriela in concert. Despite the ability to see most of their songs on youtube and I have "pirated" copies of their DVDs. Why? Because they are much better live (okay, I didnt know that until I saw them, but not a big surprise). The $35 I paid was a freakin' bargain, they are that good live.

    How did Shakespeare make a living without copywrite? Thats right, by actually performing the plays.

  • ||

    How do novelists make money? Be the one or two who can fill a stadium with people who want them to listen to them read a book out loud they can't sell to people because one person can buy one copy and pass it out?

    It is OK to borrow my car without my knowledge when I'm at work? Is it OK to crash at my house when I'm on vacation? I mean, I haven't been deprived off anything except maybe mileage on my car or maybe a little electricity, right?

    Intellectual labor is labor. My labor should not be stolen in any form.

  • robc||

    Your labor hasnt been stolen. What you did still exists. Whether you create a novel, a song, a computer program, a widget or whatever, YOU STILL HAVE IT.

    The novelist makes money by selling copies of his novels. He just does it at commodity prices. Why does an original Van Gogh go for $100 million more than a duplicate that cant be distinguished between?

    Maybe the novelist should sign the title page of all the copies he is selling.

  • ||

    You are making a conflation of artifact and content. My labor creates the content (the words and ideas on the page) and the artifact is just a medium of transmittal.

    If the labor of intellectual creation is not compensated, then it ceases. Having a few assholes who abuse copyrights and patents here and there is nothing compared to depriving people the legal framework for being paid for intellectual labor.

  • robc||

    I buy the artifact. I can do whatever I want with the artifact, it is MINE. And as far as content, once I think it, it is MINE too.

    Im discussing patent more than copyright here, but same basically applies.

  • robc||

    If we didnt have patent/copyright laws, there would be no lack of compensation for intellectual creation. I refer you ONE MORE FUCKING TIME to the William Shakespeare example. He was fucking compensated for his fucking creations.

    Van Gogh's works are worth more after his copyright has expired (assuming he ever had one) than they were during his life. Explain that!

  • ||

    Once again, artifact over content. The paintings are worth something because they are irreproducible in their essential natures and they have great age. And please notice that nowhere have I said that prints or other reproductions of Van Gogh paintings should still be restricted under copyright.

    And if you can't tell the difference between and play and a novel, we'll get nowhere.

  • robc||

    The paintings are worth something because they are irreproducible in their essential natures

    That is even more BS. They are completely reproducible and provide the viewer the same enjoyment as the original.

    And yet, the original still sells for megabucks.

  • ||

    That you acknowledge that there is such a thing as an original proves my point.

  • robc||

    That you acknowledge that there is such a thing as an original proves my point.

    No, it proves mine. The original has extra value, possibly. The existence of copies takes nothing away from the original.

  • ||

    I refer you ONE MORE FUCKING TIME to the William Shakespeare example. He was fucking compensated for his fucking creations.

    He was fucking patronized by aristocrats, first the Lord Chamberlain, then later King James (V)I. There's a reason why they were called the Lord Chamberlain's Men, and then the King's Men.

    Their company also had a fucking government granted exclusive right to perform Shakespeare's plays. Yes, it was back in the day when those rights had to be granted individually, but they were.

  • robc||

    He was fucking patronized by aristocrats

    Nothing to prevent a novelist today from having a patron.

  • ||

    Nothing to prevent a novelist today from having a patron.

    Nothing to say about the government granted exclusive performance right, though, I imagine?

    Shakespeare is not a good example.

  • robc||

    Shakespeare is not a good example.

    Im guessing he didnt get the government guarantee with his first play. So he still is a good example. He then turned his lobbyists loose. Sounds like standard corporate practice.

  • ||

    Im guessing he didnt get the government guarantee with his first play.

    Playwrights who were not attached to a company sold the rights to a company, which then had exclusive performance rights. It's how the chartered theater troupes worked in the English Renaissance theatre period.

    A law in 1572 made it illegal to perform plays as an unlicensed company lacking a formal patron. That predates Shakespeare himself.

    So he still is a good example. He then turned his lobbyists loose. Sounds like standard corporate practice.

    Whether it's common corporate practice to get a government monopoly or not, it's still not a good example for your point that someone could succeed in writing great literature without such government monopolies. The golden age of English Renaissance theater consisted of massive government granted monopolies and bans on unlicensed players.

  • robc||

    How do novelists make money?

    What did the buggy whip manufacturer do when cars came around? He got a new job.

  • robc||

    Since I used the Shakespeare example up above, there is probably a reason he wrote plays instead of novels. And yet, novels existed before copywrite.

  • ||

    Not really. The earliest things we would consider novel length works of fiction were created under copyright laws. Mary Shelley, for example, had numerous legal battles with publishing houses turning out unauthorized copies of Frankenstein and The Last Man that she was receiving no compensation for.

  • robc||

    El ingenioso hidalgo don Quijote de la Mancha was published in 1605/1615.

  • ||

    Yes, when hand-copying a book or re-setting the entire typeface cost far, far more than just buying a copy.

    Basically, you are saying it's OK to deprive me of compensation for labor because it's so easy now. Like you have no right to keep people from entering your home because locks are now so easy to pick.

  • robc||

    Basically, you are saying it's OK to deprive me of compensation for labor because it's so easy now.

    You arent being deprived of anything, you have to sell your labor for less because it is so easy now. You are trying to deprive me of my labor because you happened to think of something before I did.

    If I make a better widget than you, my labor is worth more. Even if you thought of it first. You should have realized that red would outsell green.

  • robc||

    You should have realized that red would outsell green.

    or blue, in Lexington.

  • ||

    I'm not keeping you from writing a better novel, just transcribing my own.

  • robc||

    I'm not keeping you from writing a better novel, just transcribing my own.

    Bullshit. If you invent a widget and I invent the same widget later (maybe by taking yours apart and learning how it works - its still MY fucking invention, I figured out how it works) and the only difference is you paint it tennessee orange and I paint mine UK blue - the law would shut me down, even thought mine is CLEARLY better. You would TAKE the fruits of my labor in a court of law.

    And you call me the thief?

  • ||

    Uhmm...

    "The wind done gone"?

  • ||

    Sorry...the above was a reply to this comment:

    I'm not keeping you from writing a better novel, just transcribing my own.

  • ||

    Is the "The Wind Done Gone" a transcription of "Gone With The Wind." Did she just typeset the original novel and pass it off as her own?

  • ||

    Is the "The Wind Done Gone" a transcription of "Gone With The Wind." Did she just typeset the original novel and pass it off as her own?

    No it's worse. They got an injunction because it was a derivative work and too similar.

    It isn't the only example. Lots of Copyright cases involve copyright holders trying to prevent derivative works under the auspices of protecting the integrity of the original.

    Which indicates that IP laws that you seem to be defending does in fact prevent one from writing a better novel and not just stopping one from transcribing someone else's work.

  • Applederry||

    We're not depriving you of anything. We're just reading a string of letters and words that happen to form sentences and paragraphs that happen to also appear in a novel you wrote. Do you believe you own that string of letters and characters in any form they appear in?

    Do you believe, if I had a house that looked exactly like YOUR house in every single way, including a wife and daughter that look just like your wife and daughter that you can claim to own that house, even though it is across the street?

  • Applederry||

    The Tale of Genji, generally considered to be the first true novel, was written in the 11th century.

  • ||

    The Tale of Genji, generally considered to be the first true novel, was written in the 11th century.

    Something written specifically to please court patrons is not the best model for today, either.

  • robc||

    Something written specifically to please court patrons is not the best model for today, either.

    Instead write to please Bill Gates and Warren Buffett. Maybe a novel about bridge.

  • ||

    This reminds me, broadly, about the argument about corporations. Both are ways to monetize the opinions and power of the many, instead of the few. I don't really find it superior for people to argue for single wealthy patrons for the media or business in general.

  • ||

    El ingenioso hidalgo don Quijote de la Mancha was published in 1605/1615.

    Exception that proves the rule. Don Quixote came out under copyright. The First Edition, the publisher only secured copyright for Castille because he didn't think it would be a success, leading to unauthorized copies in Portugal and Aragon, but this was remedied by the Second Edition of Part One.

  • ||

    Granted, it's hard to distinguish things because copyright was invented very soon after the printing press spread.

  • robc||

    Granted, it's hard to distinguish things because copyright was invented very soon after the printing press spread.

    I was wondering when copyright made it to Spain. I was just trying to come up with a novel WELL before Shelley and I knew he was a contemporary of Shakespeare, who didnt have copyright available.

  • ||

    I knew he was a contemporary of Shakespeare, who didnt have copyright available.

    But Shakespeare did have exclusive government granted performance rights to his plays.

  • ||

    I was wondering when copyright made it to Spain.

    In general, copyright made it to Catholic countries earlier, thanks to a papal bull. (One of the Alexanders, I think.)

    Now, libertarians can take note that the Church's interest in copyright was also because of their interest in making sure that the wrong kind of books didn't get published. I'd start your criticism there, really.

    But overall, three things happened at about the same time:
    1) Printing press
    2) Copyright
    3) Explosion in novels

  • ||

    You're pretending that copyright worked the same way, or that it was alltogether enforceable in any way. I'm sure that pirates abounded then. There are several authors who write on the subject of whether copyright "caused" art to occur. Lots of people made use of the copyright systems, I grant you, but that doesn't really prove that these people wouldn't be able to find another way to make profit, or that art would cease to be.

  • ||

    Who needs novels? Even if the novel died, written word wouldn't. And several novels from england were sold in the US without any protections as cheap dime novels, and they actually made more money than they did in England where they were protected.

    The reason that Hollywood is the film capital is that people moved across country in hopes that edison's patents on the east coast wouldn't be able to reach them.

  • ||

    And several novels from england were sold in the US without any protections as cheap dime novels, and they actually made more money than they did in England where they were protected.

    Didn't make money for the authors, though, as Dickens famously complained about when he visited.

  • ||

    Dickens actually yelled at all the people who greeted his boat because they were all waving pirated editions.

  • ||

    It still incentivized the publishers to hire those authors, though.

  • ||

    It still incentivized the publishers to hire those authors, though.

    The publishers in America who pirated Dickens's books didn't hire Dickens.

  • ||

    How did Shakespeare make a living without copywrite? Thats right, by having a government granted exclusive right on actually performing the plays.

  • ||

    Yeah, but the manuscripts were pirated all of the time, and it is hard to tell which plays are actually Shakespeare's now.

    "Shakespeare, whose works are so well known, yet whose texts exist in so many versions, furnishes an instructive example of the perils of authorship before copyright. Under the laws of his day, once his company had performed one of his plays, Shakespeare lost the legal ability to prevent further performance by anyone else. All he could do to control performance rights, as it were, was to keep the acting script, or prompt book, under lock and key. Since his plays were popular, a brisk business sprang up in counterfeit manuscripts, produced by actors from memory, or by scribes in the audience who took notes, that were sold to rival companies and performed as plays by—who else?—William Shakespeare. As a result, after 400 years of Shakespeare scholarship, we still don't know for sure which of the many variant texts of Hamlet represents Shakespeare's own authorized version, and we probably never will. "

    http://www.aaupnet.org/aboutup/copyright.html

    Oh no! You might be reading a really smart, intelligent, creative play that wasn't written by Shakespeare! Teh horror!

    Hardly proves even this author's point about copyright ENCOURAGING art. Yes, even pirates and frauds add something to art. Something that wouldn't exist had they not broken the spirit of copyright law.

  • ||

    Oh no! You might be reading a really smart, intelligent, creative play that wasn't written by Shakespeare! Teh horror!

    Which means that you're disavowing your earlier point about branding, right?

    Also, the author is a bit wrong about copyrights as they applied to plays in that period. While the formal copyright law in the Statute of Anne was not passed until 1709 or so, the Stationers' Company (a guild) had a Royal Charter to have a monopoly over publishing and enforcing copyrights therein.

    The part about performance rights is also wrong, as there are no records of popular plays, say, Othello, being performed by other players until the Restoration period, after the Puritans shut down the theaters.

    Yes, people could attempt to write down plays and perform them, but the legal strictures existed that they violated.

  • ||

    The Stationers' Register is our source for knowledge about most of these plays as published, and that was the official registry used by the Stationers' Company for claiming copyright over printed works.

  • ||

    Most of the arguments against intellectual property apply indiscriminately to all forms of intangible property.

    Apple stock, for example, is intangible property. Most of it exists only as digital data. Most arguments against IP cannot articulate why I shouldn't be allowed to "create" Apple stock in my brokerage account without actually buying it from someone.

    The exception might be the counterfactual arguments that IP somehow systemically impoverishes us all by retarding innovation and the like.

  • ||

    You could create your own apple stock, but I sure as hell wouldn't buy a share from you, unless you could back it up with a guaranteed dividend or some other reason to buy your piece of paper. Apples and oranges, my friend, apples and oranges.

  • ||

    Your ability to sell stock has nothing to do with intellectual property. Stock represents actual property, backed up with at least the promises of more money later.

  • robc||

    Bullshit. Apple stock is tangible property. The fact that it happens to be stored in an intangible form is beside the point. Apple has a list of owners - beyond that its contract law.

  • Jersey Patriot||

    This is all well and good, but it doesn't address RC's point. If it's okay to copy someone's music or invention without their permission, why isn't it okay to copy Apple's stock? After all, no one has any less stock because you made a copy. Moreover, preventing me from copying stock with my computer or printing press is a violation of my right to property, no?

  • robc||

    You can copy the stock, but Apple contractually cant acknowledge it when sending out dividends or having votes.

    If you try to pass it off as "stock Apple thinks is real", you are committing fraud.

  • ||

    Why isn't it? I agree. My point was that even if you could print your own apple stock, it wouldn't be worth anything unless you could back it up. This has nothing to do with IP. You're getting into a buyer beware issue, and essentially fraud. You'd be stealing from the people you sold the fake apple stock to, because you would be lying about what you were actually selling. A copyright infringer isn't necessarily a fraud, unless they lie about their product or its origins. IN the case of the apple stock, when I never received an apple dividend, I'd know that I had been defrauded, but if i give you a printed copy of "the fountainhead" how am I being fraudulent in the absence of copyright law?

  • ||

    You can copy the stock, but Apple contractually cant acknowledge it when sending out dividends or having votes.

    Just like a company can't acknowledge that I have the rights to their IP that I copied, right? So what?

    If you try to pass it off as "stock Apple thinks is real", you are committing fraud.

    And if I try to sell IP that I copied without permission as "IP the company let me license", I am committing fraud. Again, so what?

    IN the case of the apple stock, when I never received an apple dividend, I'd know that I had been defrauded,

    You do know Apple doesn't pay dividends, don't you? Its only value is on resale?

    but if i give you a printed copy of "the fountainhead" how am I being fraudulent in the absence of copyright law?

    If my transfer of "Apple" stock to you comes with implied warranties that it is genuine and I have the legal authority to transfer it, why doesn't your transfer of a copy of the Fountainhead come with the same implied warranties?

  • ||

    Completely separate issue. You're discussing your ability to back up a piece of paper with a guarantee of asset value. A patent is a license to monopolize and control a product after it has been sold.

  • ||

    Apple stock is tangible property.

    Err. No, its not. I suggest you look it up before spouting off.

    Apple has a list of owners - beyond that its contract law.

    So what? How is Apple's list of shareholders any different from a company's list of licensees for its IP?

    Apples and oranges, my friend, apples and oranges.

    Why? "My" Apple stock is perfect digital replica of "their" Apple stock. There is no difference, other than provenance. You'd buy it from me without asking for all those guarantees and crap, just like you buy any stock.

  • ||

    I can do this all day, folks.

    What is even more fun is to do it with real property, not the more familiar forms of intangible property.

    People who define property as nothing more than what you can load into a truck and drive off have a very, very limited understanding of what property is.

  • ||

    Because in your head, the ability to make money off of an actual asset (or the backing of an actual asset) is the same as the ability to control people who are acting completely independently of you from engaging in their own wealth producing activity.

  • ORLY||

    Seeing self-proclaimed libertarians rush to the defense of government-granted monopoly is fun.

  • Applederry||

    Being called communists by our fellow libertarians is even more fun.

    And it helps to remind us how easy it is to become too self-righteous and to remember to be a little more humble.

  • robc||

    Eh, as much as I disagree with them, as a fellow minarchist, I dont have a problem with it.

    With some exceptions, we aint anarchists here. By definition, that means we accept some government-granted monopolies.

  • Applederry||

    "By definition, that means we accept some government-granted monopolies."

    This is true. Everyone has their little pet projects they support. This is why the government never stops growing.

    This is why it's important we examine ourselves and if the pet projects are truly worth it.

  • robc||

    I dont really consider the courts a pet project. More like a minimal necessity because man is capable of evil.

  • Applederry||

    Regardless of what you call it, the point is we all support government in some way and we should constantly examine if that support is necessary.

  • ORLY||

    Minarchism is a subset of libertarianism which also includes anarcho-capitalism - agreed? The minarchist calling the anarcho-capitalist a "communist" shows its true totalitarian colors.

    This post is copyrighted and you owe me five bucks for holding its content in your head while reading it.

  • ||

    Thanks for contributing absolutely nothing to the conversation. Just flat fucking nothing. Congratulations.

  • ORLY||

    Your propensity to use expletives is inversely proportional to your ability to participate in adult conversation, as you demonstrated through this whole thread. Congratulations to you, corporate peon/adjunct slavemaster. Seems you got lost on your way to the NRO website. This site is for people who at least pretend to favor freedom.

    So here's what I contributed to the discussion: you don't get to redefine libertarianism as a whole as something that needs the government to be able to operate. That flat fucking went way over your head.

  • Kroneborge||

    Just because some corporations hold IP rights doesn't make IP a corporation thing.

    It's an ownership thing. Stopping trying to posion the well.

  • ||

    Uh, libertarianism is a theory of "limited government" not "no government." Be an anarcho-capitalist if you want, but you are the one seeking a self-serving redefinition.

    I'm defining intellectual property as property therefore is it in the role of a limited government to protect it.

    We can have an argument about that if you think you are capable, but that neither makes me a peon to shadowy corporate masters or a Republican. Nor does it make Gabe's paranoid ravings useful in any sense.

    I'm quite conversant in subject of this website, and I don't pretend to speak on it's behalf like some.

    I'm sorry if some naughty words offend your delicate little ears. I'll gear my language down to 4 grade so maybe you won't have to hold back the tears.

  • ORLY||

    Since when libertarianism is a theory of limited government? You have an understanding of what the word means so narrow as to be self-negating. I can see why maximizing public utility might be more important to you than freedom.

    It's funny how you give yourself the freedom to paint other people's perspectives as "communist" (knock yourself out) but said people have to refrain from similarly reducing your position to a misleading label.

    I really don't care about your language, I talk down to you in the same way you talk to others. And your talking tough is laughable.

  • Applederry||

    Since I consider myself a minarchist I have to disagree.

    The people calling us communists are simply troubled by what they felt was an established truth being challenged. That and hot tempers. Has nothing to do with totalitarianism.

  • ||

    I called you communists because you refuse to recognize the intellectual labor of a self-owned individual as property.

    If you don't like that, maybe you are who needs to examine their assumptions.

  • Applederry||

    Yes, I refuse to recognize that just as I refuse to recognize the right of the people to free health care and just as I refuse to recognize the right to not be offended.

    What I do recognize is that intellectual property does not exist in the same way that physical property exists.

    I recognize that when you claim you can own blots of ink simply because those blots resemble the blots you once made years before, you create a lot of problems.

    Speaking as an aspiring writer, I recognize that my work may be "stolen" and that it can be "stolen" much easier without the government to help me enforce my monopoly. But I also recognize the easy way is not always the right way.

  • Kroneborge||

    Wait, so you are against the "right" to free healthcare, but you are for the "right" to free IP?

    So, you are against stealing from doctors and nurses, but it's ok to steal from the people that make medical devices, or those that create music/movies/books/software etc.

  • Applederry||

    No.

  • Kroneborge||

    "NO",

    Sorry, could you clarify. No, you don't support stealing of peopel's IP, or NO you do think healthcare is a right and so you support stealing from healthcare providers.

  • Applederry||

    No, I don't support stealing.

  • Kroneborge||

    Sorry, I thought you were arguing against the idea of IP.

    I guess we are in agreement then. Stealing whether real or intagible is bad.

  • Applederry||

    "Sorry, I thought you were arguing against the idea of IP."

    I am.

    "I guess we are in agreement then. Stealing whether real or intagible is bad."

    Agreed.

  • Kroneborge||

    How can you be against stealing and against IP?

    Stealing someone's work is stealing. Whether you break into the car, or into their computer.

  • Applederry||

    "How can you be against stealing and against IP?"

    Because you cannot steal IP, at least not in the same way as other property.

    To steal something is to deprive another of their property. To deprive someone of something, that something must have scarcity. Since IP has no scarcity, one cannot be deprived of their IP, since you cannot deprive someone of IP, you cannot steal IP.

  • Gritz||

    Sooo.... Copying someone's files(a novel perhaps) off of their computer and using them for personal game should be legal...because you only copied the files, the owner hasn't lost anything...

  • ORLY||

    And you refuse to recognize that, among libertarians, many dispute the need for government to enforce IP, and many others don't recognize IP at all. Here, educate yourself, you little fascist-minarchist (how do you like a taste of your own medicine?):
    http://en.wikipedia.org/wiki/L.....l_property

  • ORLY||

    Fuck this threading, that was an answer to SugarFree.

  • ||

    Uh-oh. Naughty language alert. I guess anything you have to say is invalid.

  • ORLY||

    Yes, now address my points, fucktard.

  • ||

    Why? You used naughty language.

    Fascist-Miniarchist. You're either joking or a complete retard. I really don't have the energy to figure out which.

    You may go now.

  • robc||

    As do you. When I think something I own it and you claim that you thinking it first deprives me of my property.

    You are a fucking hypocrite on this issue.

  • robc||

    Why do patents and copyrights expire?

    (Okay, thinks to Disney, copyrights done, but theoretically)

    If the intellectual labor grants some sort of right preventing anyone else from thinking the same thing, why doesnt it last in perpetuity?

  • ||

    Personally, I only think it should last as long as the life of the author. And I think we should get rid of passive copyright.

    It's a government-granted limited time monopoly. I don't pretend it's anything else. But I do think IP is not only consistent with self-ownership, but something a limited government should concern itself with.

    I'm not an anarcho-capitalist. I don't pretend to be. But differing on the question of IP as property doesn't make me not a libertarian.

  • Chrispy||

    Why would it only last for the life of the author? Any other property I can pass down to my descendants. If IP really is property, why shouldn't it work the same way? robc asked an interesting question, but you didn't answer it.

  • Applederry||

    So you refuse to recognize the right of people to pass on their intellectual property to their children when they die?

    "But differing on the question of IP as property doesn't make me not a libertarian."

    But it does make you a communist apparently.

  • ORLY||

    There are no doubt libertarians in favor of IP. But the way you differed by calling "communists" people who disagreed with your pretty narrow (within libertarian sub-currents) point of view was not libertarian. If you do that while arguing in favor of government-enforced anything, don't be surprised to be named back a fucktard fascist.

    But if you want to come back to a more reasonable position that recognizes as legitimately libertarian points of view that either a) recognize that IP doesn't need the government for its enforcement, or b) don't recognize IP, then great, I'll consider the argument won and that's been my contribution to this thread. I'm willing to recognize your POV as libertarian, though it strikes me more as having a classical liberal/Chicago vibe.

  • ||

    More naughty language. I guess I don't to to reply to invalid posts.

  • ORLY||

    Oh I see. Silly me for considering for a second you might not be an idiot.

  • ORLY||

    Not all minarchists call anarcho-capitalists "communists." But those who do show their totalitarian reductionist denial of dissent within the libertarian family, and their greater taste for government-enforced order than for freedom. Ergo, they're LINOs.

    I'm minarchist in practice (anarcho-capitalist in theory but I'm afraid it's not going to happen in our lifetime) but I don't think govt-enforced IP falls within the realm of what justifies a minimal state. And as yourself I start from the fact tangible goods and ideas have very different properties (pun intended).

  • ||

    ""This post is copyrighted and you owe me five bucks for holding its content in your head while reading it.""

    Not an example of copyright law at all.

  • ORLY||

    Humorless Idiot Savant Syndrome (HISS)

  • ||

    There are no libertarians(almost) when it comes to seeing that we need government to enforce monopolies for teams of lawyers working at the biggest companies for at least 17 years.

  • ||

    There are no libertarians (almost) when it comes to seeing that we need government to enforce private contracts of any sort, too.

  • ||

    If it is an end user licensing agreement between customer and producer, fine, if they can enforce it. However, creating an extra arm of government power just to protect monopolization seems highly dubious and all together different from a contractual agreement between two voluntary participants.

  • ||

    Recording music and making movies cost money, they way the recoup the cost is by selling their product. By copying and selling the product yourself, you are taking money that would be used to pay off the production costs.

    To think you are entitled to free works of art, you're a memeber of the welfare clan.

  • kinnath||

    If I spend $200M making a movie, I expect the existing copyright framework to allow me to persue legal action against anyone that copies the movie without my consent.

    If the current copyright law went away, I will:

    Encrypt all of my content.

    Force all distributors to sign private contracts to allow me to sue them if my movie gets into the wild.

    Apply digital watermarks so that I can track which copy goes to which distributor.

    Sue into oblivion whoever let my movie out into the wild.

    I expect the distribtors will apply their own layers of security to avoid my lawsuit.

    Not that much changes except the CDs and DVDs that exist won't exist in this new world.

  • Applederry||

    Do you know if my date this weekend will put out? I ask because you clearly have a crystal ball that you can see into the future with.

    So because the government doesn't have all the laws you want it too, society may (or may not!) go in the direction you want it to.

    Again, I must ask so what? If that's the result of eliminating a government monopoly, then that's the world we will live in. Or maybe the market will find another way to keep $200 million productions profitable.

  • Kroneborge||

    "Do you know if my date this weekend will put out? "

    Yes your hand will put out !

  • ||

    What I do recognize is that intellectual property does not exist in the same way that physical property exists.

    I repeat, from above:

    Anyone who thinks that property is nothing more than what you can load into a truck and drive off with has a very, very limited understanding of property.

  • Applederry||

    Oh, I agree, absolutely!

  • ORLY||

    Given you confused a title of tangible property (APPL stock that happens to be in digital form) with IP, count yourself in the camp of those with very, very limited understanding of property.

  • Stormy Dragon||

    Compromise: the company can patent the BRAC gene, provided they accept legal liability for all cancers caused by "their" gene.

  • ||

    the pro IP fetishist remind me of that Galambos dude,laughable...I'd tell you about him if you all would paypal me $10

  • wayne||

    IMO, nobody should be able to patent, or copyright a gene. The researcher who "discovered" the gene did not invent it, hence he/she has no intellectual property rights to the gene.

  • Robert||

    Composition-of-matter patents on existing genes are ridiculous. The proper method of protection for inventions relating to them is patenting method-of-use, and only after a nontrivial showing of utility.

  • Zubair||

    That was very informative and well written. Mentioned below is an article on gene patent debate:
    "The amicus brief submitted by the Department of Justice (DOJ) in the Breast Cancer Gene patent appeal before the Federal Circuit has drawn great attention during the last week. A US District Court had earlier rejected isolated gene sequence claims in Myriad's patent stating that they do not satisfy the patentable subject matter requirement because they are products of nature. Aggrieved by the decision of the District Court, Myriad appealed to the Federal Circuit. The Department of Justice has filed an amicus brief before the Federal Circuit stating that the District Court's opinion was right with respect to genomic DNA sequences. As the DOJ's opinion is very persuasive, it has once again brought the gene patent debate to life.

    The DOJ has clearly pointed out in its brief that cDNA sequences, vectors, recombinant plasmids and chimeric proteins are patentable but the genomic DNA sequence, which exists in human body is not patentable. As per DOJ, merely isolating the exact sequence as it exists in the body does not merit patent protection as it amounts to product of nature. The DOJ has in its brief logically pointed out that isolation of such a sequence and identifying the fact that it encodes a protein that causes breast cancer, which is a natural relationship, is not sufficient to make the sequence patentable."......read more at http://www.patentpill.com/2010.....again.html

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