1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/4908/hope-you-dont-like-your-dvr/

Hope you don’t like your DVR

April 14, 2006 by

If so, expect your fees to rise, with TiVo’s recent $74 million patent lawsuit victory, sure to be leveraged against cable TV companies who offer TiVo-like DVRs. (The award might actually be tripled, because the jury found the infringement was “willful.”)

This report of the decision states “In a case cast as crucial to TiVo’s (TIVO) survival, a federal jury decided that EchoStar Communication Corp. (DISH) copied key technologies from the digital video recording pioneer and awarded TiVo nearly $74 million.”

I doubt, however, that the jury really found that EchoStar copied TiVo’s technology. Unlike copyright law, patent law does not require a showing that the patentee’s technology was copied. This is yet one of the many significant injustices of patent law: Independent invention is not a defense to patent infringement. Even if you come up with a technique or device entirely on your own, if it is too similar to something someone else has filed (or might later file!–earlier invention is also not a defense) with this US government agency, you can’t use it without their permission.

Sad that this unjust system, which is tantamount to legalized theft, is defended by some advocates of capitalism and property rights.

{ 18 comments }

quincunx April 14, 2006 at 11:39 am

I hear the same old arguments from supporters of patents. They always give the utilitarian case of companies not investing huge amounts of capital if they can’t recoup their costs through a limited-time monopoly. But their utilitarian arguments fails when one considers the fact that multiple companies are chasing new technologies at the same time. Multiple companies are making big investments, and yet only one can come out with a certain patent. All those that made the product but didn’t patent it, are liable to be sued by the patent holder. If the patent holder manages to get an injuction – or otherwise break the company, it will be a negative investment overall. Patents seem to be the province of poker economics.

So, besides being immoral and unjust, the utilitarian case is also faulty.

Person April 14, 2006 at 11:58 am

Stephan, I don’t see any citation of authors supporting your point that the patent system is unjust. People won’t take you seriously without citations. You should provide them so people won’t think you’re just some teenager who thought of this one day without reading the relevant literature. You need to prove to people you know your stuff.

TCA April 14, 2006 at 12:01 pm

There’s a completely free alternative to TiVo. It’s called MythTV. All it requires is a computer, a cable TV connection, and a little bit of technical know-how.

Simply install a version of the free Linux operating system, and the free MythTV software package, and provided you have a TV tuner card in your computer, you now have full DVR capability absolutely free. Addtionally, there is no monthly fee for using MythTV, unlike TiVo. It’s a labor of love like Linux. Finally, MythTV allows you to capture video directly to MPEG which enables you to burn video to DVD without worrying about digital rights restrictions or anything of the sort.

Yes, you will need to DIY, but the documentation is all there and there are thousands of people ready to lend to a hand on USENET groups and internet forums.

The MythTV website is here:

http://www.mythtv.org/

There is also a Linux distribution called KnoppMyth tailored specifically for MythTV which attempts to make the installation process as easy as possible. You can find that here:

http://www.mysettopbox.tv/basics.html

Good luck geeks!

Paul Edwards April 14, 2006 at 1:17 pm

“Sad that this unjust system, which is tantamount to legalized theft, is defended by some advocates of capitalism and property rights.”

It is sad, but i am convinced that time will bring most libertarians around to the conclusion that patent law is blatantly unjustified.

Person,

In this field, Stephan himself is the walking talking citation. New readers interested in the subject will realize this if they stick around and pay attention.

Brian Drum April 14, 2006 at 1:19 pm

Umm, Person, Stephan Kinsella is a patent attorney. Surely that qualifies him to talk about the patent system, don’t you think?

Person April 14, 2006 at 1:24 pm

Actually, Stephan is almost universally viewed among patent attorneys and IP scholars as a crank.

Wild Pegasus April 14, 2006 at 1:25 pm

Even if you come up with a technique or device entirely on your own, if it is too similar to something someone else has filed (or might later file!–earlier invention is also not a defense)…

Earlier invention is indeed a defence, because US patent law is a first-to-invent system, not a first-to-file. Earlier Invention is one possible method of raising a Patent Invalidity defence: an affirmative defence that agrees that the patent was infringed but should not be punished because the patent itself is not valid.

- Josh

Brian Drum April 14, 2006 at 1:29 pm

Person, I don’t see any citation of authors supporting your point that Stephan Kinsella is universally viewed as a crank. People won’t take you seriously without citations. You should provide them so people won’t think you’re just some teenager who thought of this one day without reading the relevant literature. You need to prove to people you know your stuff.

Person April 14, 2006 at 1:39 pm

It’s not my obligation to prove a negative (that he doesn’t know his stuff). It’s Stephan’s obligation to prove he does know his stuff, using the approriate citations.

Adam Knott April 14, 2006 at 1:42 pm

Keep up the good fight Stephan.

All I.P. arguments are based on the proponent stating some future economic state of affairs he/she believes “should be” the case. Then proceeding to coercive laws to achieve it. Once that principle is established, the flood gates are open to every other person with a “should be” economic future arrangement. No way around that. Establish the principle, and they will come! I.P. law is at root a merchantilistic notion. We shouldn’t hang on to it merely to justify libertarian philosophies of the past.

Person April 14, 2006 at 1:54 pm

Adam: are you really willing to discard all consequentialist concerns regarding IP? Would you be totally fine with the cessation of all for-profit production of intellectual works? Or do you believe there is some other strong incentive out there to get people to pour all this time and money into producing intellectual works? If the latter, please, share it with us.

I’m not saying I have all the answers. I’m just saying, don’t pretend like you do either.

Adam Knott April 14, 2006 at 2:10 pm

Hi Person.

Example. I’ve been working on my praxeology since at least 1986. Nothing I have ever written or will write will be copyrighted. So then I have to try to figure out how to make money if I want to do this for pay. One idea I’ve come up with is to give away my writing in plain format for free or nominal cost. But sell writings that are signed, dated & logged, as an artist would sign prints. In this way, the customer would be paying not for the idea itself, but for an actual item from the philosopher’s home, that is in effect, a signed edition. Since I can verify its authenticity, and since these will be limited in their existence (Kinsella’s “scarcity”), then they will be worth more than a PDF download from my web site.

Example. A rock band can control who gets to go to its concerts. So they can plan their careers differently, and plan to make money on their concerts, and not as much on CD sales.

The bottom line is, if one can’t count on a coerced wealth flow to make a living, one will have to deal with a different legal/economic arrangment when considering future undertakings.

No one gets to sit on their rumps for 20 years as “consumers” with a guaranteed wealth flow due to coercive laws, while the rest of society has to produce real goods and services for his/her enjoyment. The only wealth flows are those that are agreed upon (contract), not those enforced coercively and involuntarily.

One exception: Of course, if some people want to form their own society, and implement I.P. law amongst themselves, that is fine. That is their issue.

But what we are referring to is the involuntary type, when some want I.P. law, and beleive that this justifies their coercing others along those lines.

I hope this is somewhat enlightening.

Adam

Person April 14, 2006 at 2:30 pm

Adam: that wasn’t enlightening. You’re saying that reason for people to invest so much in producing intellectual works is that if and when they get famous, the originals will have value. So anyone whose works don’t attain this status until dear or after death, or for that matter, just a long time after production, well, they’re just out of luck. They should do something else. No big deal, guess that means 90% of the songs you like listening to, don’t get produced at all.

And let’s drop the “coercion” bit. There’s just as much coercion in protecting IP as their is in protecting actual property. If you view an property owner (intellectual or tangible) as the rightful owner, stopping infringement is coercion, otherwise it’s not. It just regresses to the question of what property system is the right one, and is therefore circular.

In any case, it appears you do care about the impacts of an IP-free world, and even you are unwilling to totally discard concern for the consequences.

Person April 14, 2006 at 2:32 pm

Sorry, one statement was reversed. It should be “If you view an property owner (intellectual or tangible) as the rightful owner, stopping infringement is not coercion, otherwise it is.

Adam Knott April 14, 2006 at 2:46 pm

Hi Person.

I think if the argument goes further, we get into the theory of libertarian society. And I’m aware that for 1000 people, there are 1000 visions of a libertarian society.

My only point is that once we establish that people can use their view of what they think future economic reality should be, in order to aim the laws towards making that happen, then others will use the same rationale to make their view of future economic reality happen also.

My solution is to let those that want to try this do so amongst themselves, and let others who view this as an infringement on their rights, opt out of this.

I suppose there are some who reason: No, I want to spend 20 years working on something, and when I’m done, other people should have to ask my permission or the government’s, before they do the same thing.

I disagree with this type of reasoning, which seems to be a version of the “free rider” argument.

At present, the libertarian community seems to be split on the status of I.P. law.

In my opinion the split will fall along the lines of those who hold an objectivist/realist veiw of society. (Rothbardian/Randian) And those who tend to analyze society in an analytic, value-free, praxeological way.

I’m aware that there are big differences of opinion, roughly falling along those two philosophical lines.

Adam

Stephan Kinsella April 14, 2006 at 2:46 pm

Person:

Stephan, I don’t see any citation of authors supporting your point that the patent system is unjust. People won’t take you seriously without citations. You should provide them so people won’t think you’re just some teenager who thought of this one day without reading the relevant literature. You need to prove to people you know your stuff.

Actually, I dislike arguments from authority, and my comments did not rest on that. I only recited a few established facts in support of my implicit condemnation. But I do happen to be an experienced patent attorney (http://www.KinsellaLaw.com/ip) as well as have studied the issue of libertarian and normative aspects of IP in depth.

I had said:

Even if you come up with a technique or device entirely on your own, if it is too similar to something someone else has filed (or might later file!–earlier invention is also not a defense)…

Josh/Wild Pegassu replied:

Earlier invention is indeed a defence, because US patent law is a first-to-invent system, not a first-to-file. Earlier Invention is one possible method of raising a Patent Invalidity defence: an affirmative defence that agrees that the patent was infringed but should not be punished because the patent itself is not valid.

This is not a forum about that one issue, nor about me, nor about arcana of US patent law. But for the record, let me say that Josh knows not of what he speaks.

First, earlier invention per se is NOT a defense to patent infringement. This is because earlier invention is relevant only in a few narrow cases. First, if the earlier invention was made public, then it can bar a later patent on it. But many inventions can be used in secret.

Second, if there is a battle between two patentees when they have similar claims–then in some cases the one that was first to invent can prevail, if he can show that he was diligent from the time he conceived of the invention to the time he reduced it to practice/filed a patent on it. But this is relevant only where both parties have a similar patent. It does not protect an independent inventor who develops an idea first and does not make it public and does not patent it.

Third, in November 1999, a so-called “first-inventor defense” was introduced (American Inventors Protection Act), but limitedly to “business methods.” See 35 U.S.C. Sec. 273. Now why, pray tell, would Congress add a prior-user defense (limited as it is) if “first invention” were already a defense?

This is, in fact, the reason why it can be dangerous to rely on trade secret protection: suppose company A develops a nozzle for use in a chemical plant in 1990. They keep it secret and use it to manufacture a given chemical at an increased efficiency. In 2001, company B independently invents a similar nozzle and patents it. They can then stop company A.

In any event, most countries in the world do have a first-to-file system, and in fact the US has recently considered (2, 3) moving to this approach (and amusingly, Ayn Rand mistakenly thought the US had a first to file system and then tried to defend it–see fn. 29 of my Against Intellectual Property article).

averros April 16, 2006 at 6:30 pm

Person – you are obviously a crank, regarded as such by most people in this forum.

Prove that you aren’t.

Well, that was a rhetorical question, because you can’t (nobody can). Actually I do not think that you’re a crank; you are a proven demagogue, though, condemned by your own words.

lorenzo sleakes April 17, 2006 at 8:00 am

To me intellectual property is a matter of freedom of contract which is of course a libertarian principle. They are extensions of the ability to make a contract that says to the purchaser: you will not violate the secrecy of this patent or make copies of it. If an author sells a book isn’t it allowable for him to stipulate that people cant make copies of it?

Now you may say that other people who did not agree to the contract by buying the book are also limited. But are they really limited or is this just a hypothetical loss of freedom. Lets say someone purchase the “The World According to Garp” and agrees to the contract. The book is later thrown out in the garbage and somebody finds it in the garbage and calls it his own. Now we have a new illegitmate author of the “The World According to Garp”. He says he is perfectly legitimate because he never purchased the book with its implicit contractual terms. But the person who did sign the contract should have burned the book safeguarding its secrecy. Of course this is not practical. Which is why we need intellectual property. It is to strengthen secrecy contracts that otherwise are unenforceable.
Maybe TIVO technology was actually copied and maybe it wasnt. It is almost impossible to know. The utilitarian argument as I see it is not to justify the investments of creators and inventors – but to practically enable the enforcement of their legitimate contracts.

Comments on this entry are closed.

Previous post:

Next post: