The Insanity of US Intellectual Property Laws
by KevinMarch 30th, 2006
I hate the way the US handles intellectual property laws. They are needlessly restrictive, favor IP owners to a ridiculous degree, and do damage to our culture and our economy. This is just the latest example:
Makers of the wildly popular “World of Warcraft” online game now face a lawsuit from an eBay seller who claims he was improperly barred from selling copies of his own unofficial gaming guide.
Filed Thursday in a California federal court, the complaint alleges that Blizzard Entertainment, its parent company Vivendi Universal, and the Entertainment Software Association (ESA) were wrong to order eBay to terminate auctions of “The Ultimate World of Warcraft Leveling & Gold Guide,” a book penned by 24-year-old Brian Kopp of Bronson, Florida.
… The companies went on to threaten copyright and trademark infringement action against Kopp. In one message quoted in the complaint, a Blizzard executive said Kopp could not lawfully sell a guide that “attempts to trade off the substantial goodwill and recognition that Blizzard has built up in connection with its World of Warcraft product.” He also dismissed Kopps’ claims that his book was solely meant for “educational” value, saying it clearly had a commercial purpose.
Kopp’s complaint argues that his book does not infringe on any of the companies’ copyrights for several reasons: The book presents a disclaimer on its first page about its “unauthorized” nature, contains no copyrighted text or storylines from the game, and makes “fair use” of selected screenshots under copyright law, the complaint said.
In effect, if the video game industry’s actions are upheld, “then selling a how-to book about Microsoft Word would infringe Microsoft’s copyright, especially if the book contained one or more screenshots of Word’s user interface,” said Paul Levy of the public-interest advocacy group Public Citizen, which joined in filing the suit on behalf of Kopp. “We think this cannot be the law.”
The fact that Blizzard could launch this suit is the problem. Under our current regime, Blizzard can attempt to drive a competitor out of business through the use of lawsuits related to their intellectual property claims, even lawsuits as baseless as this one appears to be. (And I hope it is entirely baseless. I would hate to think that IP laws actually back up such a ridiculous seeming claim) All Blizzard had to do here was threaten eBay with a claim based on the DMCA and eBay folded, essentially putting this person out of business. If, on the other hand, we had a system of compulsory licensing, attacks on the free market like this could be averted. As it is now, Blizzard could conceivably drive this company out of business and maintain a monopoly in a segment of the market. That isn’t good for consumers or the economy at large.
Categories: Culture, Economics, Legal Issues |
You’re certainly right that IP law - especially copyright - is grossly distorted. The basic assumption of copyright and patent protection is that all created works should accrue to the public at some point; the protections granted by IP law are specifically intended to be temporary, to provide an incentive to disseminate useful knowledge, not to prohibit its use!. Since “intellectual property” is nothing more than an idea, and ideas are infinitely distributable, the whole concept of preventing others from using an idea is suspect. (You own property that you create, but ideas are not property except in the legal sense. Copying your idea does not deprive you of anything like stealing your property does, so you have no moral claim to exclusive control of an idea. Copying ideas inhibits your ability to make money off them, but that is not a moral right; only possession is a moral right, but you always possess your ideas no matter how many other people do also.) We grant the temporary legal privilege of exclusive commercial profitability as a social policy, to encourage invention, but only for that reason. But IP law has been perverted into an essentially interminable right to exclusive profits as a goal in itself.
Today copyright has been extended to an insane 70 years after the death of the author (the aptly-named “Mickey Mouse rule” - a law created expressly to protect the freakin’ Walt Disney corporation’s rodent rights), and 95 years for “works for hire”. Various changes over the years have always extended - never decreased - the term of copyright; today nothing published after 1923 is in public domain if the copyright holders made a consistent effort to protect it, and for previously-unpublished works the date is 1886.
The situation is insane. A new, critically-acclaimed translation of Proust’s 7-volume Remembrance of Things Past has been released in England, but only the first 4 volumes, published in 1922, are available in the US; the remainder were published after 1923 and thus fall under the 20-year Mickey Mouse extension. If a new, undiscovered late manuscript by Henry James, Mark Twain, or Walt Whitman suddenly came to light today, it would be illegal to publish it (of course, the same is true for Louisa May Alcott, so it’s not all bad.) Michael Crichton pointed out just last week that patent law now not only allows patents on naturally occurring parts of the human genome itself, but is being used to restrict people from accurately stating, or even thinking about!, basic scientific facts relating to the patented material. Patent law also grants only 20-year protection for actualy working inventions, but copyright on mere ideas can easily extend to almost 150 years; by definition it extends three generations past the death of the author! - recall again that the purpose was to encourage authors to publish, but they hardly need encouragement 70 years after they die.
IP law and its continual extensions of exclusive rights to profit are a perversion of both the Constitution and the capitalists system, as well as the moral right of property ownership on which they are based. It’s more than an inconvenience; it’s a disgrace.
What is “a system of compulsory licensing”?
KTK: “Since “intellectual property” is nothing more than an idea, and ideas are infinitely distributable, the whole concept of preventing others from using an idea is suspect.”
those in the software industry might disagree. Why invest in developing an “idea” if others can then bring it to market and reap the rewards?
“those in the software industry might disagree”
Depends. Click once shopping software should not be patentenable, but it is and Amazon has the patent. That is what KTK is talking about, I think. Patents liek that don’t patent an implimentation, they patent theentire idea of doing something is, frankly, pretty bloody obvious.
those in the software industry might disagree. Why invest in developing an “idea” if others can then bring it to market and reap the rewards?
There would be much less incentive, of course - and that is the point to copyright and patent law, to provide that incentive. And few people think that is a bad idea in general.
But notice that this is completely different from “property rights” in the classic sense. Most political theorists hold that you have a moral right to something you create from raw materials that you are entitled to use. It’s your property, and only you can own or control it - but that right is assignable, so you can sell your property in voluntary exchange for valuable consideration. This gives a moral basis to the entire capitalist system - it’s a system of exchanges based on moral rights to property. Note also that real property rights are perpetual - if you own something, you own it forever (unless you sell it or give it away), because you created it and thus have an inherent right of control over it. No one can ever morally deprive you of your own property (without your permission), which they do by taking it from you or making use of it without your permission.
This is all completely different from property in ideas. Ideas are just contents of the mind - they are not physical objects in the first place, so it is strange to talk about “ownership” of them, still stranger to claim that they can be “stolen” or “exchanged”. If someone “takes” your idea, you are not deprived of it - you still have it yourself, and can put it to use just as you had originally intended to. Someone else’s use of that idea may impact your ability to make money from it, but you do not have a moral claim to making money in any circumstances; they are not invading your moral right, just your profitability. Since allowing this would make idea creation less attractive, we create the legal fiction of “intellectual property” and subsume it under property law, but that is just a policy move - it is grounded only on an expectation of what will make invention and commerce more beneficial, not on a moral right to exclusive market use of an intangible state of mind as if it were the same as a newly-created piece of solid property.
The Constitution explicitly recognizes this when it says “The Congress shall have Power . . . To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries”.
Patent and copyright are expressly policies adopted for the public benefit, by way of “promot[ing] . . . Progress”, not inherent moral rights in property. (And the Framers certainly recognized such rights - they just didn’t think that patents were an issue of property rights.)
So we should have patents and copyrights, but we should and do have the power to grant them only to the degree necessary to encourage creativity. There is no reason, and no moral right, to grant exclusive rights of profitability extending 70 years after the creator has actually died! That’s nothing more than a giveaway of what should rightly be the people’s property.
kevin,
Patenting a software implementation is meaningless. The value lies in the algorithm, not the code.
I will grant you the Patent Office has a horrendous track record in the software field, going all the way back to granting a patent on using the XOR operation to non-destructively display/erase a cursor to a bitmap. I imagine the situation has improved recently, but for quite some time this was primarily a reflection of naivety wrt software on the part of the examiners.
KTK,
I suppose in the software field, technology moves so quickly that IP becomes irrelevant long before the patents expire anyway.
dont you idoits think you have anything better to do???