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Source link: http://archive.mises.org/5516/apple-pays-creative-100-million-to-settle-patent-suit/

Apple Pays Creative $100 Million To Settle Patent Suit

August 24, 2006 by

Apple Pays Creative $100 Million To Settle Patent Suit–Creative uses its patent on “Automatic hierarchical categorization of music by metadata” (PDF copy; FPL version) to force its way into doing business with Apple and to extort $100M from them.

The first and broadest claim of this brilliant innovation gives Creative the exclusive rights to make, use, or sell the following “method” (I’ve broken out the actual five steps covered by the method in bullet points: the first part is a mere preamble and merely defines terms and sets the context for the actual steps; any competitor that has a product that engages in all five of these steps, or their “equivalent” (even if the competitor uses additional steps too) is “infringing” this claim:

A method of selecting at least one track from a plurality of tracks stored in a computer-readable medium of a portable media player configured to present sequentially a first, second, and third display screen on the display of the media player, the plurality of tracks accessed according to a hierarchy, the hierarchy having a plurality of categories, subcategories, and items respectively in a first, second, and third level of the hierarchy, the method comprising:
  • selecting a category in the first display screen of the portable media player;
  • displaying the subcategories belonging to the selected category in a listing presented in the second display screen;
  • selecting a subcategory in the second display screen;
  • displaying the items belonging to the selected subcategory in a listing presented in the third display screen; and
  • accessing at least one track based on a selection made in one of the display screens.

Wow, this case is a perfect illustration of the idea that patents are just such a great source of innovation and wealth. I’m sure, without Creative’s heroic innovation and genius engineers, no one would have ever figured out that it would be useful to have “an interface that lets users navigate through a tree of expanding options, such as selecting an artist, then a particular album by that artist, then a specific song from that album”. Without Creative’s brilliant creativity–which we would not have been blessed with but for the incentives of reaping $100M in go-away money from the big guy on the block–society would forever be doomed to have MP3 players that only allow you to choose from thousands of songs alphabetically. Think how much time and effort we are all spared now, due to this blockbuster innovation by Creative.

But wait a sec. For Creative to win their patent suit against Apple, they don’t even have to prove Apple got the idea from Creative’s patent. Even if Apple came up with the idea independently–even if the idea is, shall we say, fairly obvious–Creative could still win. Hmm.

{ 51 comments }

Person August 24, 2006 at 11:28 am

Wow, this case is a perfect illustration of the idea that patents are just such a great source of innovation and wealth.

Is this the part where I’m supposed to chime in and bring up a drug that pretty clearly wouldn’t have been invented, only to see you then act like your entire point here was irrelevant all along?

Stephan Kinsella August 24, 2006 at 11:34 am

Why, Person, fancy you showing up here! :) So glad to have you aboard.

You write, “Is this the part where I’m supposed to chime in and bring up a drug that pretty clearly wouldn’t have been invented, only to see you then act like your entire point here was irrelevant all along?”

Why, no, I think in this case, you should either admit that this is indeed a case of a patent that should not have been granted, or, if you disagree, try to explain why and how it is justified–and also why it is justified that Apple would have to pay $100M even if it didn’t copy this idea from Creative, but came up with it on its own.

If you agree that this is a dubious patent, then you should explain how many such unfair/costly results you are willing to tolerate to get the “good” results you like in pharmaceutical patents, and lay out your methodogy for estimating all these costs, and benefits, and please then show how you apply them to come up with a “net benefit” (unless, of cousre, you support patent rights even if it does not result in some kind of measurable “net benefit” to society?).

Jim Collins August 24, 2006 at 11:49 am

This kind of makes me wonder if I shouldn’t try to patent the period (.) and the decimal point (.).

I think Apple should have fought the suit. Unless I miss my guess didn’t Apple invent the GUI system, without the GUI Creative’s menu tree wouldn’t exist?

Jon Rogers August 24, 2006 at 12:02 pm

Knowing a little about the ridiculous fees that patent lawyers charge, could it just be that Apple believed it to be cheaper to settle out of court, than to endure a potentially lengthy (and very public) trial which it was likely to lose based on the wording of the patent? Granted, I would have thought that this suit would be thrown out immediately, but I suppose that I am somewhat naive.

Person August 24, 2006 at 12:09 pm

Actually Stephan, what I think I should do is accept that this is a poor application of a patent system, and note that a parallel “argument” (and I use that term loosely) could be made against all property rights, incorrectly reasoning that because in Instance X, someone’s property rights were misapplied (e.g., a farmer being ruled to have the right to shoot down airplanes over his farm), “the property rights system” is invalid/unjustified.

Stephan Kinsella August 24, 2006 at 1:14 pm

Person: let’s not change the subject. Are you saying that you agree that this is a patent that should not have issued? If so, what standards are you using? And are you saying it was poorly issued just because of a mistake at a “gray area” by the PTO; or that the standards themselves are either wrong, or inherently ambiguous (in which case, what should they be?)? Do you think such “mistaken” decisions by the PTO are just par for the course, just random, and infrequent? Or are they rampant and unavoidable?

Person August 24, 2006 at 1:20 pm

Stephan: let’s not change the subject. Are you saying that you agree that a court should not rule that farmers can shoot down planes? If so, what standards are you using? And are you saying it was poorly issued just because of a mistake at a “gray area” by the court; or that the standards themselves are either wrong, or inherently ambiguous (in which case, what should they be?)? Do you think such “mistaken” decisions by the court are just par for the course, just random, and infrequent? Or are they rampant and unavoidable?

Tu quoque: Forcing people to actually think about what they say since before the fall of Rome.

Stephan Kinsella August 24, 2006 at 1:24 pm

Person: you are being unserious, a mere gadfly and annoying sophist again. If you don’t want to engage, fine.

This post was yet another of a seemingly endless series of examples of obvious cases of injustice flowing from grants of patents by the PTO. It is compatible with a critique of the system as inherently injust. If you want to seriously reply you can either admit, or deny, the appropriateness of my example. Either case requires an explanation by you, given that you support the patent system (or so I am forced to assume).

Person August 24, 2006 at 1:31 pm

Person: you are being unserious

Stephan: it was not unserious, and the fact that you see it that way shows you didn’t even understand the point I was making, and on top of that shows your refusal to consider any point that doeesn’t agree with you. Stop it.

a mere gadfly

Can you, or anyone here, explain to me why I’m supposed to shake in my boots at receiving the “gadfly” label? And any other words that had a hard time escaping the 18th century that you want to use, so I can look them up in advance?

This post was yet another of a seemingly endless series of examples of obvious cases of injustice flowing from grants of patents by the PTO. It is compatible with a critique of the system as inherently injust. If you want to seriously reply you can either admit, or deny, the appropriateness of my example. Either case requires an explanation by you, given that you support the patent system (or so I am forced to assume).

I already explained my response, using as few sentences as possible so as to circumvent your “parse and forget” technique. The fact that bad patents get granted is no more of an argument against patents than the fact that farmers get anti-aircraft artillery rights is an argument against property rights. Accept it, and move on.

Stephan Kinsella August 24, 2006 at 1:41 pm

Person, buried in your mirthless metatalk is one semi-substantive, not completely evasive reply: “The fact that bad patents get granted is no more of an argument against patents than the fact that farmers get anti-aircraft artillery rights is an argument against property rights.”

No one denies real property has borders. At the borders there are gray areas. Where *exactly* is the line dividing Blackacre from Greenacre? People tend to build a bit away from those gray lines just because they are gray. And surely, any justice system can make mistakes. So an instance of mistake proves little.

But we all agree here on propety rights in material things. None of us would say that these considerations doom rights in these things.

Where we don’t agree is in IP rights. We see a continuing flood of unjust results. I claim it is because of the inherent ambiguity in this field, caused because IP is not property. You still refuse to say whether or not you even agree this was a bad patent that issued. Do you? Do you have any standards?

Note, to criticize the judge in the airspace examplel, one has to presuppose some standard by which you compare the result in the case that you would criticize. In the IP case, likewise: if you criticize this, what standard are you criticizing it based on? Do you think, e.g., that the law’s “obviousness” standards are too lax? Or that the PTO just misapplied them? Or that the PTO needs to spend more money on “better” examiners? What exactly is the error here, if you do see an error (and do you?).

happy lee August 24, 2006 at 1:46 pm

Poor Apple has to pay 100mill to some dorks who had foresight to file a piece of paper with some gs-8 clerks, and Apple also has to pay big $$ to Beatles because of use of name “apple.” It sort of reminds me of the John Gault line regarding you know its time to toss in the towel when the laws are designed to punish the productive and protect the unproductive, or something like that.

Stephan Kinsella August 24, 2006 at 1:52 pm

Happy: re the analogy of Apple and John Galt: the analogy breaks down if Apple supports the existence of IP law, which I bet they do.

Person August 24, 2006 at 1:55 pm

Stephan:

[...metatalk...]

Where we don’t agree is in IP rights. We see a continuing flood of unjust results.

You don’t claim there are continuous unjust rulings regarding property rights?

I claim it is because of the inherent ambiguity in this field, caused because IP is not property.

You above agreed there are inherent ambiguities in “real” property.

You still refuse to say whether or not you even agree this was a bad patent that issued.

False. Scroll up. AND REMEMBER WHAT YOU WERE LOOKING FOR BY THE TIME YOU GET THERE.

Do you have any standards?

Yes, non-obviousness.

Note, to criticize the judge in the airspace examplel, one has to presuppose some standard by which you compare the result in the case that you would criticize. In the IP case, likewise: if you criticize this, what standard are you criticizing it based on? Do you think, e.g., that the law’s “obviousness” standards are too lax? Or that the PTO just misapplied them? Or that the PTO needs to spend more money on “better” examiners? What exactly is the error here, if you do see an error (and do you?).

Nice trick. The problem is, YOU brought up the PTO example, so the burden is on you. YOU claim there is some standards-ambiguity attaching to IP but not real property. YOU show the standards that were used in the airplane example, and then I’ll tu quoque you until you see it in the PTO case.

Person August 24, 2006 at 2:05 pm

Happy: re the analogy of Apple and John Galt: the analogy breaks down if Apple supports the existence of IP law, which I bet they do.

Well, it also breaks down in John Galt supporting intellectual property rights, and withholding his invention from everyone on precisely the basis that he would not be granted them, but whatever.

quasibill August 24, 2006 at 2:47 pm

I know I’m going to regret banging my head against the brick wall again, but:

“Yes, non-obviousness.”

Okay. That’s a nice piece of jargon. Now, explain what it actually means. Note, I’m not looking for an exposition on what the law currently is, as (apparently, as you are very careful never to make positive propositions here) we can agree that the law gets misapplied sometimes currently. So what is the real standard, and how do you differentiate between “obvious” and “non-obvious”? Was the GUI at stake here obvious? Why or why not? Do you require an expert immersed in the field to testify as to what is obvious to those versed in the science? How do you expect a judge to resolve a conflict between two scientific professionals on the question of what is obvious based upon their specialized knowledge? Especially from hindsight?

Also, note that no misapplication of patent law actually happened here. There was a settlement of what most would agree was a nuisance suit. A fairly large one, at that.

Bob Smith August 24, 2006 at 2:52 pm

This patent should have been tossed as prior art. Creative Labs knows any well educated software engineer would immediately recognize that. CL also knows that computer science degrees aren’t acceptable credentials for patent examiners, thus any patent examiner would be unlikely to recognize it as prior art, and furthermore it knows that litigating a patent after the fact is much more expensive than getting it thrown out at the examination stage. CL obviously gamed the system, with malice aforethought.

Stephan Kinsella August 24, 2006 at 2:57 pm

Person: “Yes, non-obviousness.”

Ha ha. Got ya. See below.

“Nice trick. The problem is, YOU brought up the PTO example, so the burden is on you.”

Why? You also agree that it is a clear case of a patent that was unjust to grant.
I know I’m going to regret banging my head against the brick wall again, but:

somewhat bill: “”Yes, non-obviousness.”

“Okay. That’s a nice piece of jargon. Now, explain what it actually means. Note, I’m not looking for an exposition on what the law currently is, as (apparently, as you are very careful never to make positive propositions here) we can agree that the law gets misapplied sometimes currently. So what is the real standard, and how do you differentiate between “obvious” and “non-obvious”? Was the GUI at stake here obvious? Why or why not? Do you require an expert immersed in the field to testify as to what is obvious to those versed in the science? How do you expect a judge to resolve a conflict between two scientific professionals on the question of what is obvious based upon their specialized knowledge? Especially from hindsight?”

this is partly my point. The entire standard is utterly non-objective and arbitrary *even in its ideal form*.

Smith: “This patent should have been tossed as prior art.”

Honestly, I am not sure this is so, well, obvious, based on the non-objective, ambiguous standard of obviousness in the law. That is part of the problem: there are no clear answers.

“CL also knows that computer science degrees aren’t acceptable credentials for patent examiners, thus any patent examiner would be unlikely to recognize it as prior art,”

Well, I think that changed a few years ago.

Yancey Ward August 24, 2006 at 3:33 pm

Jim Collins,

You must cease and desist in your usage of the period/decimal point. You are infringing on my US Patent 6,538,002.

However, for the very small fee of just $1/year, I will license them to you.

Sione Vatu August 24, 2006 at 3:40 pm

Person

I’ve been following your argument with Stephan Kinsella regarding patent and intellectual property (IP) for some time. In order to understand what was going on I thought it would be a good idea to get hold of some text books on the subject and study up on. The two I have regard Australian IP law (I have the Chris O’Sullivan text and the Fraser Olds text as well). Most interesting. I understand the law in the USA is similar in many regards although there are differences in the details. Both texts discuss aspects of international IP law and in particular the US system is discussed. I also got some good material from the local law library (I had to join as a non-lawyer; expensive business).

I’m very interested in knowing the answers to the questions regarding the patent at issue in this particular case.

Was it a patent that should not have issued?

What was the standard or test applied to determine the decision to award the patent or not?

The United States Patent and Trademark Office thought it was fit to issue that patent. Do you agree they were correct in so doing? Or did they make a mistake?

If this patent was issued due to a mistake, what was the mistake? Where was it exactly? What did the United States Patent and Trademark Office do wrong? Was it a misinterpretation of the idea, or the claims, or the form of the document, or was it a mistaken application of the test (standards) that were applied to decide whether to award the patent or not?

Was this an isolated and rare error or are such mistakes commonly made by the United States Patent and Trademark Office (USPTO)?

I am led to believe there are many dubious patents in the system (I was given a collection of some really odd stuff- all awarded). Is this all down to clerical or other administrative errors? Is there a systemic problem in the USPTO?

Or was it due to the test being wrong?

Now, if the test was wrong, what exactly was wrong with the it?

Is it correct that the test to award a patent is inherently arbitrary and ambiguous?

If so, how would you repair the test to make the it objective and specific? What are the specific principles to be applied?

In the case of an erroneously awarded patent how would you go about repairing the damage done to the competitors of the patent owner? Presently they must incur costs litigating or incur an effective loss simply by not producing goods and services they otherwise might. Who should be expected to bear all these costs? The present arrangement can hardly be considered just.

Please let me know what your thoughts are on these important questions. I’d be interested to read them.

Talofa!

Sione

Curtis August 24, 2006 at 11:36 pm

I have no point, but I just want to dance a happy little jig at the fact that Person hasn’t reappeared on this thread.

Of course, we all know he’s busy working out his thoughts on these important questions.

Sione, you might want to consider marketing that troll spray.

Paul D August 25, 2006 at 4:55 am

Kinsella says to “Person”:

“let’s not change the subject. Are you saying that you agree that this is a patent that should not have issued? If so, what standards are you using?”

I’d really like to see Person or another patent proponent give this an honest answer. Unfortunately, all I see is trolling.

TGGP August 25, 2006 at 8:23 am

I don’t really see how air traffic routes can be “homesteaded” and made property, so I don’t know how disputes over use of them would be resolved under a Lockean system.

Curt Howland August 25, 2006 at 12:55 pm

Person will not answer a direct question where the answer to it will demonstrate him wrong. He always evades by trying to contrast practical and principle as being contradictory.

The air traffic issue is a perfect example.

Air traffic routes are, in my opinion, handled well by “right of way”.

If I put up a radio tower on my own property, low flying planes must yield to the tower.

If I build a space elevator, even high flying planes must yield.

I expect a standard for ownership of what is above, or below, my land will be worked out. For instance, even though mineral rights are part of ones property (usually) in the US, I cannot stop my neighbor from digging a well even though the water table goes under my property too. They must *abuse* my access to the water under my property before I can object.

The reason I disagree with absolute power of the homeowner and their anti-aircraft missile, is that a plane at 30,000 feet has no effect on his property. But even a small plane, actively barnstorming his house, certainly does.

Being unable to address practicality, as well as principle, makes arguments like Person’s and Stephen’s inevitable.

Person August 25, 2006 at 7:29 pm

quasibill/Kinsella:

[stuff about obviousness]this is partly my point. The entire standard is utterly non-objective and arbitrary *even in its ideal form*.

You’re not making a fair comparison. You should compare the vagueness in defining “first use” (for homesteading) and the vagueness in defining “obvious”, OR you should compare a posited standard to decide “first use” to a posited stndard for deciding “obvious”. What you’re trying to do is compare the concept of “obvious” to some standard you have in mind for determining “first use”. Apples and oranges.

Paul D:

Kinsella says to “Person”:

“let’s not change the subject. Are you saying that you agree that this is a patent that should not have issued? If so, what standards are you using?”

I’d really like to see Person or another patent proponent give this an honest answer. Unfortunately, all I see is trolling.

I will answer that question AFTER someone rigorously defines what it means to be the “first user” of something. e.g., Must I place a footprint on every part of the land, etc.

By the way, I wouldn’t so much consider myself a “patent proponent” so much as a “poor arguments against patents by people who really should know better” opponent. See the difference?

Curt Howland: Building one tower does not give you the right to controll all airspace. Don’t even try to claim that.

Sione:

I’m very interested in knowing the answers to the questions regarding ruling that farmers have the right to shoot down airplanes:

Was it a ruling that should have been made?

What was the standard or test applied to determine the decision to award the anti-aircraft rights?

The Federal courts thought it was fit to issue that ruling. Do you agree they were correct in so doing? Or did they make a mistake?

If this ruling was issued due to a mistake, what was the mistake? Where was it exactly? What did the courts do wrong? Was it a misinterpretation of the boundaries claimed by the farmers, or was it a mistaken application of the test (standards) that were applied to decide what property boundaries are?

Was this an isolated and rare error or are such mistakes commonly made by the federal courts?

I am led to believe there are many dubious rulings on property law in the system (I was given a collection of some really odd stuff- all awarded). Is this all down to clerical or other administrative errors? Is there a systemic problem in the application of property law?

Or was it due to the test being wrong?

Now, if the test was wrong, what exactly was wrong with the it?

Is it correct that the test award airspace rights, when the principles applied are inherently arbitrary and ambiguous?

If so, how would you repair the test to make the it objective and specific? What are the specific principles to be applied?

In the case of an erroneously awarded property right how would you go about repairing the damage done to the true property owner? Presently they must incur costs litigating or incur an effective loss simply by not producing goods and services they otherwise might. Who should be expected to bear all these costs? The present arrangement can hardly be considered just.

Please let me know what your thoughts are on these important questions. I’d be interested to read them.

Tu quoque: forcing people to actually think about what they say since before the fall of Rome.

Stephan Kinsella August 25, 2006 at 8:27 pm

Person, any time there is a dispute over a given resource, there is a dispute over that resource. There are two or more people who want it. So it’s already clear what is being fought over, and since both sides want *possession* of it, it’s also pretty clear what possession of it *means*–it’s already related to the nature of the dispute itself.

The libertarian is the one who says that as between the two, the one who has the *first* or *earlier* such possession (say, of the type being sought) wins.

Now you, if and to the extent you favor patent rights, but not of the type in the case at hand, are basically saying that if A owns property, then B, who invented a method of using property, is now a partial owner of A’s property. Why? I don’t know. Something to do with B’s innovatoin; or the need to reward him; but wahtever your rule is, it’s complicated, and apparently vague and unclear. All you seem to be able to tell us–and that only by us reading between the lines since you are so slippery and evasive, like all advocates of confused positions–is that your rule would probably assign ownership of part of A’s property to B in some innovation situations, but not in others. Now, we are asking you what your assignment rules are: what are the rules, the exceptions, the basis for them.

Our rule is clear: first use. Yours is unknown. We are forced to inductively guess your answer from only a couple of vague data points.

Curt Howland August 25, 2006 at 11:57 pm

Person, where did I say “all” airspace?

Fact: I can build a tower on my own property.

Fact: An aircraft and a tower cannot occupy the same space at the same time.

Therefore, if I build a tower, the aircraft must yield rather than fly through it.

This is not a difficult concept.

Paul D August 26, 2006 at 5:40 am

“I will answer that question AFTER [irrelevant content snipped]”

Thank you for keeping us all in suspense for an answer you apparently don’t have.

adi August 26, 2006 at 6:37 am

It seems that first people use Logic for argumentation and ( when previous fails ) then use Dogmatism to pontificate…

Problem with the abolition of IP is a kind of letting unknown demons in your house because much would chance by this decision. R&D resources would be directed to other fields where better opportunities exist. If I remember correctly it was Fritz Machlups opinion (http://mises.org/etexts/patentsystem.pdf ) that big chances in this field are not preferable to status quo. And Ludvig von Mises didnt take strong position either with respect to IP in Human Action. There he wrote about kind of externalities arising if patents are not allowed.

Person August 26, 2006 at 11:24 am

Stephan:

Person, any time there is a dispute over a given resource, there is a dispute over that resource. There are two or more people who want it. So it’s already clear what is being fought over, and since both sides want *possession* of it,

False. Like I said before several times, not all disputes involve “possession”. Someone may agree that another has the right to physically hold on to a good, but not that he make certain uses of it. “Possession” is clearly not in dispute. This exact point underlies the flaw in your “information isn’t scarce” anti-IP argument that I have explained to you several times to no avail. Now, you could expand the concept of “possession” to include all possible disputes over a scarce resource, but at that point, it’s even clearer that your argument here fails, as do all implications you claimed (below that) follow from it.

(And of course, you and Curt have already conceded on another thread, in a separate matter that, in a given region, the first person to manipulate his property a certain way gains the right to exclude all others in that region from using their property that way.)

Curt Howlwand:Person, where did I say “all” airspace?

I don’t know. When did I say “no IP rights leads to zero innovation”? When did I say nobody used the Linux operating system? Never. But that didn’t stop you from attributing those positions to me without any basis whatsoever and without apologizing for any of them, and without, apparently, learning what that’s like. So, until you learn your lesson, expect to suffer the exact same kind of frustration when I try to communicate with you. Fair?

Paul D:Thank you for keeping us all in suspense for an answer you apparently don’t have.

Thank you for keeping me in suspense for an answer you apparently don’t have.

quincunx August 26, 2006 at 6:34 pm

‘(And of course, you and Curt have already conceded on another thread, in a separate matter that, in a given region, the first person to manipulate his property a certain way gains the right to exclude all others in that region from using their property that way.)’

Yes indeed. Did you miss that lecture about the difference between real property and IP that has been repeated for you ad nauseaum for (I think) about a year now?

Person, you have become the butt of too many jokes; can you please just tell the audience that you are an IP fetishist?

I think it would make things clear, and avoid a lot of unnecessary bandwidth in the future.

Sione Vatu August 26, 2006 at 6:41 pm

person

I am disappointed that you are unable to answer any of the questions I asked you. They were clearly conveyed and I am serious. I sought assistance from you as I am interested in learning about patents and intellectual property. Why are you, clearly a staunch proponent and defender of patents, not prepared to provide the information I requested?

Please return to the questions I asked you previously and answer each of them honestly and in turn. Don’t evade them as that does no-one any good. I learn nothing and you appear to be dishonest and unable to contribute anything of value. I am seeking your knowledge. Do me the small courtesy of demonstrating it.

I know of no ruling in Australia (or New Zealand or Tonga, both Samoas, Fiji, the Cook Islands, Noumea, or even Niue -formerly the “Cannibal Isles”) that grants farmers a right to shoot down aircraft passing overhead. There may be such I ruling but I am not an expert in aviation law or even regular law and so am unaware of it if it exists. If such a ruling is on the books I’d appreciate being told all the details.

Do the Federal Courts in the USA grant a right to farmers to shoot down passing aircraft? I don’t know. I’d have thought not but I’m not a lawyer, nor am I a citizen or resident of the USA, so my opinions are only a guess. What little I know of the USA legal system comes from reading a few books, general discussions with colleagues and friends, as well as material presented on the media. I know a bit more about the USA intellectual property law from reading some texts recently (and being exposed to commentary on the VMI blog- hence my request for assistance from you- I’m seeking a rational way of defending the IP concept. Is IP really property?). During my time in the USA I did not come across anyone shooting at aircraft though. You’ll need to supply me with more information about what the law is over there and how it was determined regarding the matter. Similar questions to those I asked you about IP law would apply for this case also.

Although I’m not really interested in aviation law in the USA, you are welcome to explain it to me if you like. But how about we start with the subject of IP first? After all, IP is the topic this discussion is supposed to be addressing.

Sione

Person August 26, 2006 at 7:08 pm

quincunx:Yes indeed. Did you miss that lecture about the difference between real property and IP that has been repeated for you ad nauseaum for (I think) about a year now?

I’ve seen *attempts* at arguments, but no actual arguments. Remind me what you’re referring to here?

Sione:

The purpose of me turning your question around was to help you find the answer to your own questions. If you’re unwilling to answer them, well, I think you’re the one who’s not serious.

To everyone here:

It’s cute that you like to paint me as the IP lover, but the truth is, I’m not. I consider myself undecided, which is exactly I have little tolerance for poor arguments toward either end. If and when someone here makes poor arguments in favor of IP, I will be at least as brutal.

Sione Vatu August 26, 2006 at 7:31 pm

person

If helping me find YOUR answers to MY questions is your purpose, then you should know that your post did not help at all. You have yet to achieve your stated purpose. Given that is the case it would be a good idea now to try a different, more direct approach.

Seriously, the best way you can help me would be to actually answer the questions I presented you with. That is the simplest and most direct method available for you to convey to me what it is you think.

How difficult can it be to state your opinion clearly? I’m interested to read it. I’ve asked you for it. Why is it you refuse to present it?

Sione

Stephan Kinsella August 26, 2006 at 7:57 pm

Sione, Person refuses to answer because he insists on acting like a gadfly; instead of seriously engaging, he retreats to meta-discussions, obsesses about previous posts, uses sophistry, etc. I think the problem is he is genuinely cornered and is smart enough to know it, so he resorts to these other tactics purely defensively. Integrity and honesty might require a different approach.

Person August 26, 2006 at 10:08 pm

Note: meta-discussion is defined as “anything Stephan Kinsella doesn’t like”. When he smears other users … that doesn’t count as meta-discussion.

Sione: I already answered you in full. Yeah, I could come up with some rigorous standard for what is “obvious”, and you could poke holes in it, and the you all could come up with a rigorous standard for what constitutes “use”, and then I could poke holes in it, but we wouldn’t be any better off than before. YES there are bad patent rulings. Yes, there are bad property rulings. NEITHER is an argument against either. There’s not much more I can add to that. You should be able to answer your own questions before you make me answer them. Otherwise, it kinda starts to look like you have a double standard.

As for my position. Well, since I already stated it, I can only take your inquiry to mean that you think I’m lying. If you really forgot it, here it is again:

Person’s position on IP: Undecided, but cringes at poor arguments for either side by people who should know better.

Now, how many more times am I going to repeat the above?

Stephan Kinsella August 26, 2006 at 11:00 pm

Person, whose real name and email I will not mention: “Note: meta-discussion is defined as “anything Stephan Kinsella doesn’t like”. When he smears other users … that doesn’t count as meta-discussion.”

A smear is not technically meta-discussion, it’s just inappropriat as changing the subject or ad hominem. Meta-discussion refers to changing the subject of discussion to a discussion about the discussion. Such as you’ve successfully done just now. It’s just a sub-type of changing the subject, which is a type of slippery evasion and dishonesty in argumentative tactic. It demonstrates a lack of sincerity. :(

“Sione: I already answered you in full. Yeah, I could come up with some rigorous standard for what is “obvious”, and you could poke holes in it,”

Hmm I wonder why.

“Person’s position on IP: Undecided”

Well, you say you are undecided, yet you attack IP opponents with your boring drug-patent examples, which imply you believe the patent system is worthwhile in some cases. And as you refuse to state your view, yet are indigment when we are forced to interpolate it.

The fact is, either you agree with us real libertarians that it is wrong, at least ceteris paribus, or prima facie, to use the scarce resources appropriate by someone from the state or nature (or contractually acquired from someone who did) without their consent or permission–or you don’t. If you don’t, you are nothing but a savage-criminal, an uncivilized person, and merely a technical problem, and I for one see no particualr reason to speak to you. But if you do, as I assume you by and large do, there here we have it: you and I and others here agree on the basic idea that if you appropriate a thing then you own it. Yes the contours can be fuzzy, yes mistakes can be made. So what. we all agree on the basic point.

Given this, for you to propose an IP theory, or even for you to doubt or challenge any libertarian opposition to IP on any basis whatsoever (or even for no basis), requires you to accept the burden of proving why this is not incompatible with the basic, fundamental property appropriation rule we all agree with already.

So what is it, Person? Are you an advocate of criminality, or do you want to attempt to satisfy the burden of proof you’ve assumed by claiming even the possibility that IP rights are justified? If you don’t put up you might as well shut up, because you are saying nothing, you are merely barking.

Sione August 27, 2006 at 12:49 am

person

No you have not answered any of my questions. You did not even make an honest attempt to do so.

Why do you evade the questions? Do you not have any answers to share?

All I’ve asked (politely) from you was for you to provide me some information. Why is it you want me to try to guess what YOUR answers to MY questions may or may not happen to be? I’m not omniscient. I do not know your thoughts. I know not how you formed your conclusions. That’s why I asked man.

Your comment;” You should be able to answer your own questions before you make me answer them” is baffling. I’ve already told you that I am not an expert in this field. I asked you these questions because I want to understand your opinions about the topic. I want to learn from YOU what YOU are thinking and what YOUR approach is.

You previously stated that your purpose is to help me understand the answers to my questions. Well I am asking you to do exactly that by the most direct and simplest possible method. Here is your opportunity.

Please provide the answers to those questions. Surely that isn’t too much to ask?

Sione

Person August 27, 2006 at 12:05 pm

Stephan:smear is not technically meta-discussion, it’s just inappropriat as changing the subject or ad hominem. Meta-discussion refers to changing the subject…

Whatever dude. The point is, you seem to want to stop the “meta-discussion” at the precise moment where you start to look bad. It seems to look a little fake after a while, that’s all.

“Sione: I already answered you in full. Yeah, I could come up with some rigorous standard for what is “obvious”, and you could poke holes in it,”

Hmm I wonder why.

Try to read the rest of that passage if you could.

Well, you say you are undecided, yet you attack IP opponents

I don’t attack IP opponents. I attack the poor arguments of IP opponents. You’re the one who tries to make everything personal. (Yes, I know you can claim that’s what you “really” meant, but seriously — who would you be kidding?)

with your boring drug-patent examples

They’re not boring. When you mockingly ask “where would the innovation be without patents”, you have to consider the inconvenient facts about drug R&D. Calling them “boring” is not a substitute for a serious reply.

which imply you believe the patent system is worthwhile in some cases.

No, they imply that I believe the specific argument you attempted to advance was in error — which it was.

And as you refuse to state your view

I’ve said it several times over, and no one believes me because their feelings are too hurt by my arguments that they have to paint me as some bad guy, or, in your case, a gadfly, instead of actually rectifying the problem I listed in their argument.

The fact is, either you agree with us real libertarians

So, Rothbard isn’t a real libertarian now? (can’t wait for your handwave on this one)

at least ceteris paribus, or prima facie, to use the scarce resources appropriate by someone from the state or nature (or contractually acquired from someone who did) without their consent or permission–or you don’t. If you don’t, you are nothing but a savage-criminal,

Except that you (and Rothbard) don’t really believe this. You believe that e.g., the first person in a region to use a radio transmitter a certain way has the right stop others from using their transmitters that way, even though historically, the first property rights in these were established by statute. So, you believe in at least some divisiblity of ownership and that homesteading does not entitle you to all uses of a resource, even non-aggressive uses. And even if it did, it would mean that you accept that the non-scarcity of information does not have any implications for intellectual property — it would be irrelevant.

you and I and others here agree on the basic idea that if you appropriate a thing then you own it. Yes the contours can be fuzzy, yes mistakes can be made. So what. we all agree on the basic point.

No, it’s not “so what”. THAT’S THE CENTRAL POINT. There are fuzzy boundaries in property (i.e., first use, exact delimitation). There are fuzzy boundaries in defining “obvious” as well. Does that mean I can handwave it all away by saying “so what. We all agree on the basic point.” You are trying to claim the ambiguity in obviousness demonstrates the flaw in intellectual property. My point is that the same ambiguity can arise in “regular” property. If you don’t have a counterargument, please say so.

Given this, for you to propose an IP theory, or even for you to doubt or challenge any libertarian opposition to IP on any basis whatsoever (or even for no basis), requires you to accept the burden of proving why this is not incompatible with the basic, fundamental property appropriation rule we all agree with already.

No, you’re changing the topic. You mocked the idea that without patents, certain innovations wouldn’t happen. Here, I contested, THAT idea. True to form, you then switched topics. But now that I’ve set you straight, you won’t do that again, right?

Sione: I don’t think you’re listening to me, or if you are, you’re playing some silly game. My point is that the situations are exactly parallel. What do you gain from me giving you these answers? They wouldn’t add to or take away from the point. We’d just waste a lot of time rigorously defining concepts which we know are equally hard to define. Do you agree that the poor property rights ruling I referenced is not an argument against all property rights? Do you agree that there are fuzzy boundaries in property rights? Then you agree with my point, and your questions are a waste of time. If you just want to get background information, well, we do have the internet, you know. I’m not here to be your research guide.

Sione Vatu August 27, 2006 at 5:25 pm

person

You have indicated to me that there is a ruling by a Federal Court in the USA that allows farmers to shoot at aircraft. If so, I am surprised, but given the reputation the US legal system has for strange decisions and weird litigation outcomes I’d have to concede it is possible. However I do not know anything about this particular situation. Since you are the one who originally raised this ruling in your post to me, I have asked you to tell me all about it. Please provide the information. I need to know the details so I can understand what happened, how the decision was made and what the context was. Or were you being disingenuous?

Now I do not know what you mean by “the situations are exactly parallel.” That’s another claim you made. Which particular situations are you referring to? What is the context? In order for me to understand what you are getting at you have to explain yourself, specifically and clearly. I’ve asked for your assistance several times now. Since it is YOU have asserted this particular positive the burden of providing the proof for it falls directly on YOU. No-one else. YOU. I’m calling you out. What is wrong with you? Why can’t you back yourself? Have you nothing but rhetoric?

You go on to refer to “concepts we know are equally hard to define”. There is no “we” here. You speak for yourself only. That is why I am asking you for answers to those questions. What concepts are these you are referring to? You are once again asserting something. Fine. You can do that. Now I ask you for your method and proof. The burden to show your process and thought falls on YOU. Get on with it mate. Stop evading. Why are you so scared to show me what you’ve got?

Quoting: “Do you agree that the poor property rights ruling I referenced is not an argument against all property rights?” How am I supposed to make this decision in the absence of any information? YOU have not provided me with any evidence to back your bare assertions. Am I supposed to read your mind? Chances are that effort would lead to an incorrect answer. Anyway I do not believe in mind-reading.

I requested politely from you some information. That’s all I did. I was civil, well mannered and respectful. You responded with obfuscation, accusation and vague insult. I am not playing games with you. I asked you for some answers. Please supply them. That’s all you have to do.

Quoting: “Do you agree that there are fuzzy boundaries in property rights?” To what are you referring exactly? Are you claiming that all property rights are undefinable? All property is in some sort of fuzzy limbo? How can I even start to make a decision about this? YOU have provided me with absolutely NOTHING to base any understanding or decision upon. This is plain weak. Anyway it is somewhat off the topic. It’s not what I asked you about.

Back on point now. Let’s stick to the main topic. I have asked you several times to answer some questions relating to a particular IP matter. If you reread my original post you will find those questions are still all listed there. I also explained why I was interested and what my background in the subject was. I note that since that time you have consistently refused to address ANY of those questions directly. All that you’ve done is raise other questions (so now we have the original issue pertaining to IP, new issues pertaining to aviation law and now property laws in general as well). This clarifies nothing. What it does achieve is the raising of doubt about your performance, sincerities and abilities. Now I really do not want this to degenerate into name calling but I do have to state for the record that you have behaved in a disappointing fashion indeed. This can be rectified easily enough though. So why not do it?

With formal respect I request from you your honest and direct answers the questions I asked you about, openly and honestly. Please go ahead and answer each of them honestly and in turn. I’d appreciate your candour and assistance with this.

Sione

Person August 27, 2006 at 6:43 pm

Sione, I don’t think you’re following. My argument really isn’t that complicated, and it doesn’t depend on the numerous things you’re trying to claim it does.

Do you accept that it is physically possible for a court to make an absurd over- or mis-application of property rights? Do you accept that this would not invalidate the concept of property rights? Then you’ve granted all I need for my argument — you accept that this error on the part of the courts and the PTO is in no sense an argument against patents.

There was a case a long time ago in which farmers were ruled to have superior property rights to their airspace over planes wishing to fly over. This was overturned on appeal. But the specifics of that case aren’t incredibly relevant. The fact is, courts can screw up in adjudicating property rights, and this has no bearing on the validity of the rights as such. Your demands that I dig up the case are just a time suck, and I’d be surprised if you didn’t yourself recognize it as such.

What Stephan is left to fall back on is that what makes regular property rights immune to this exact problem is that they’re less ambiguous, and more well-defined. This then is on him, or you to demonstrate. I have already shown that ambiguity problems attach to the concept of “use” just as much as to “obvious”. I have presented everything I need to make this argument, so please stop pretending otherwise.

Sione Vatu August 27, 2006 at 10:48 pm

person

I grant you nothing at all. But I do want some answers from you.

For the record my claims are these:

1/. I asked you to provide answers to specific questions. Go to my original post and there they all are.

2/. You have not answered they questions.

3/. I’d like you to answer the questions.

4/. I’ve politely asked you to answer them on several occasions now.

5/. You’ve spent considerable intellectual effort attempting to dodge those same questions. So far you’ve introduced new arguments and situations that I did not specifically ask you about. You’ve gone to a lot of trouble doing this. Why? Surely it would be more efficient to answer the questions directly? Stick to the point.

6/. You made some claims (explicit and implicit). As you have made those claims I’ve explained it is you who bear the burden of proof for them. All of them. I am well within my rights to be asking for your proofs, “time suck” (as you so gracefully put it) or not.

7/. When you referred to “we” (as in you and I both) I explained that you speak only for yourself, not for me.

8/. I have made no argument or asserted ANYTHING when it comes to IP except that I am interested in the topic and have been doing some reading about it lately. My interest is WHY I asked you for certain specific information.

9/. I have been following the discussions about IP matters on the VMI blog and have read some of the papers I found relating to it.

10/. I visited Mr Kinsella’s web page and read some of his work. I think I am reasonably familiar with his approach to the subject.

11/. Now I want to know your position. In this case I want to know what you think about matters relating to the particular case that started this discussion off in the first place. Hence the questions.

12/. Analogy does not mean “the same as.” An analogy may be suitable as a tool of clarification or illustration of a point relating to a specific situation, but an analogy is not a verification or proof in and of itself. I prefer formal proofs. You need to be aware of that.

Finally, all I’m asking you to do is answer a few questions. That’s it. All you need to do. Answer some questions. They relate to the essay originally posted. Forget the rest, all I’d like to know is what your thinking actually is on the particular issues I asked about.

Now why is it that you go round and round in circles evading the questions? Why not take a direct approach and answer each and every question. That’d be the honest approach. How difficult can that be for you?

Sione

PS I did not invite you to comment to me about your opinion of Mr Kinsella (who I understand is a qualified engineer, attorney and IP practitioner). I can ask him questions well enough on my own. He can respond with his answers (although having read his papers, previous comments and web site I’d grant he’s already provided me with his answers and plenty of background material besides- that’s more than I can say for you). For goodness sakes man, just answer what I asked.

Sione Vatu August 30, 2006 at 8:12 pm

Person

Since you refuse to answer the questions I’ll have to interpret what your position may be from the writings you’ve made on this blog.

Q/. I’m very interested in knowing the answers to the questions regarding the patent at issue in this particular case. Was it a patent that should not have issued?

Person acknowledgement likely to be/. This patent should not have been issued.

Q/. What was the standard or test applied to determine the decision to award the patent or not?

Person acknowledgement likely to be/. “Obviousness.”

Q/. The United States Patent and Trademark Office thought it was fit to issue that patent. Do you agree they were correct in so doing? Or did they make a mistake?

Person acknowledgement likely to be/. They were wrong to issue. They made a mistake.

Q/. If this patent was issued due to a mistake, what was the mistake?

Person acknowledgement likely to be/. The mistake was due to the “fuzziness” of “obviousness”.

Q/. Where was it exactly? What did the United States Patent and Trademark Office do wrong? Was it a misinterpretation of the idea, or the claims, or the form of the document, or was it a mistaken application of the test (standards) that were applied to decide whether to award the patent or not?

Person acknowledgement likely to be/. The claims were “fuzzy”. The test was “fuzzy.”

Q/. Was this an isolated and rare error or are such mistakes commonly made by the United States Patent and Trademark Office (USPTO)?

Person acknowledgement likely to be/. The error is not rare or isolated.

Q/. I am led to believe there are many dubious patents in the system (I was given a collection of some really odd stuff- all awarded). Is this all down to clerical or other administrative errors? Is there a systemic problem in the USPTO?

Person position likely to be/. It’s too fuzzy to say. The system may or may not be fuzzy but it is fuzzy. But that does not invalidate the system just because it fuzzy. Its a valid fuzzy system and does fuzzy stuff.

Q/. Or was it due to the test being wrong?

P/. The test is fuzzy but that does not make fuzziness a reason to reject the fuzzy ideas behind the fuzzy system. I can’t reject a fuzzy concept because it is too fuzzy to say exactly what it is (except that its fuzzy) other whether its wrong or right (it’s too fuzzy for that). If the fuzzy concept stays fuzzy enough then no-one can get a clear definition what it is and I can’t have my feet held to the fire long enough for anyone to discover the flaws in the idea I am defending. I am fuzzy too you know.

Q/. Now, if the test was wrong, what exactly was wrong with the it?

P/. It’s fuzzy.

Q/. Is it correct that the test to award a patent is inherently arbitrary and ambiguous?

P/. Yes. It’s fuzzy.

Q/. If so, how would you repair the test to make the it objective and specific? What are the specific principles to be applied?

P/. Fuzziness and yet more of the same. More fuzziness. That might not make it objective and specific but as long as everything remains unfocussed and fuzzy then I can go on defending it in a fuzzy sort of a way or perhaps not, as the case may be (or not).

Q/. In the case of an erroneously awarded patent how would you go about repairing the damage done to the competitors of the patent owner? Presently they must incur costs litigating or incur an effective loss simply by not producing goods and services they otherwise might. Who should be expected to bear all these costs? The present arrangement can hardly be considered just.

P/. But it is fuzzy. Anyway, I have no interest in repairing anything. I just like the general fuzzy idea that ideas are like, you know, like property in a fuzzy sort of way, and that people can patent things and stuff. Know what I mean? Actually I hope you don’t, as I’d like to alter my position again sometime and if you understand what my position is then it isn’t fuzzy enough. I really do not like questions very much. I really don’t like being asked to state my thinking in a rigorous and logical fashion since I do not actually think that way, OK.

++

That aside, the issue here is you have been arguing on the VMI blog these past few months by making assertions which you constantly fail to explain in specific detail or properly defend. When it comes to specifics you disappear into a fog of verbiage, obfuscation and disingenuousness.

It is often stated that you can know a man according to his acts. In your case that is so. It is readily concluded you like the idea of IP but do not have a coherent or self-consistent argument to defend your fondness. The second conclusion to come to is that you are dishonest. You’d rather not consider it is you who need to build a logical position. Your evasions on this blog are evidence of a greater intellectual evasion you are committing upon yourself.

A warning for you. Analogy does not mean “the same as.” I do note your attempt to use real property as an analogy for IP. It does not hold. They are not the same and the differences extend to a more fundamental level than “use” or “obviousness” or even “ambiguity.” The similarity you are banking on is superficial at best. I recommend you start your education by walking around the borders of the property you own (or rent) and touching the ground! Next you might try to touch some if the innovative ideas in you mind. Yes! Get a hold of one of them and cast it onto the ground if you can! Clearly we are dealing with very different entities here.

To make your position you must start from first principles (which you must state and be prepared to defend) and work your way up from there, demonstrating evidence and proofs every step of the way. This requires a serious, complete, consistent and rigorous application of logic.

To conclude. I was sympathetic towards the patenting idea until I stared researching it. Then certain issues and problems became apparent. These are matters of principle and are not easily sorted out. Perhaps they can’t be. Certainly your febrile attempts suggest they can’t be.

I need to investigate the subject further but must concede that the position promoted by S Kinsella (and others) is strong. He may indeed be correct. So far I have not found a refutation. And as for you mate, you were no assistance whatsoever. Useless.

Sione

Sione August 30, 2006 at 8:23 pm

Stephan

I think you are correct about “Person”. I’d disagree with you about whether he is smart though. I think he is rat cunning alright but not very bright.

Turning now to patents. I was sympathetic to the conventional position regarding IP and patents and so on until I came across your papers and contributions on the VMI website. At the time this was an unwelcome shock. I’ve since tried to refute the approach on several occasions and each time came upon further facets of IP law and the ideas behind it. Not good for the pro-IP position I’m afraid.

So I’ll read up and learn some more but what a surprise to find that the defense of IP is in general not robust (usually relying on non-fundamentals).

Sione

Person August 30, 2006 at 9:09 pm

Sione… please… I gave you a lot more than you deserved. To every question, I either answered, or explained its irrelevance. You then repeated yourself. Several times. Really, who are you fooling here? Me, or yourself?

Stephan Kinsella August 30, 2006 at 10:14 pm

Sione, re Person’s last comment: give up; he has made it clear he is refuses to engage.

Stephan Kinsella August 30, 2006 at 10:20 pm

Sione:

I think you are correct about “Person”. I’d disagree with you about whether he is smart though. I think he is rat cunning alright but not very bright.

Interesting and plausible hypothesis. I like the metaphor.

Turning now to patents. I was sympathetic to the conventional position regarding IP and patents and so on until I came across your papers and contributions on the VMI website. At the time this was an unwelcome shock. I’ve since tried to refute the approach on several occasions and each time came upon further facets of IP law and the ideas behind it. Not good for the pro-IP position I’m afraid.

So I’ll read up and learn some more but what a surprise to find that the defense of IP is in general not robust (usually relying on non-fundamentals).

Thanks Sione. That’s nice of you to say. I have heard a similar thing from many people. Person keeps insisting I am not genuine, but look, I was originally pro-IP, I bought the RAndian line (wiht reservations, since it’s so full of sh*t), then became a patent lawyer. I realized Rand’s theory was not right, so kept struggling, trying to find ways to justify IP. Finally it dawned on my that I was failing because it was not justifiable. I changed my mind, despite myself, when the evidence and arguments becames insurmountable.

ONce one sees it, one realizes every day there are story after story of abuse and perversion. I gave a few of these, and Person can only say, well in any system there are bad decisions. He just does not get it.

Curt Howland August 30, 2006 at 10:31 pm

Me: “Person, where did I say “all” airspace?”

Person: “I don’t know.”

Then why did you state, in response to my statement, a reply that hinged upon the absolute of “all airspace”?

Person: “When did I say “no IP rights leads to zero innovation”? When did I say nobody used the Linux operating system?”

You didn’t. You stated that only through restrictive IP does innovation occur. I countered with example after example of innovation occurring without restrictive IP.

You have been asserting that restrictive IP is beneficial, asserting that it is a requirement for innovation to occur that restrictive IP to be enforced, consistently arguing in favor of patent and copyright.

What you have not done, what you have specifically avoiding doing, is supporting your assertion with something like a logical argument. You consistently demand of those who decry the abuses of IP to “prove” something, yet as above when counter examples are given to you you dismiss them as some kind of personal attack.

Since you are arguing for the existence of coercive legislation, it is up to YOU to provide something to support your assertion, to demonstrate that without restrictive IP we ALL would be worse off than they are with the abuses of IP.

Chris Tanaka August 30, 2006 at 11:40 pm

Can “Person” be the best the world has to offer? This discussion is amusing!

Sione Vatu August 31, 2006 at 12:03 am

Person

You did not answer the questions as you were requested to do. What you have done though, is demonstrate with certainty that you are a liar. Shame on you.

Sione

Petrovich June 12, 2008 at 8:46 am

Of course, but what do you think about that?,

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