1. Skip to navigation
  2. Skip to content
  3. Skip to sidebar
Source link: http://archive.mises.org/6940/the-coming-software-patent-apocalypse/

The Coming Software Patent Apocalypse

August 5, 2007 by

Interesting post about software patents. Explains that even companies that oppose software patents, such as Oracle Corporation and Red Hat, still file for and receive software patents–they must do so for defensive purposes. Of course, this disproportionately penalizes smaller companies, as with much federal legislation such as minimum wage, FLSA, and pro-union laws. The post notes that “The fashion industry … has no concept of patent protection, and thrives regardless” and “You can’t patent recipes, and yet both professional chefs and restaurants are still in business and prospering”.

But as I noted in a comment to this post, the opposition to “software patents” is simply confused. A software patent is nothing more than a patent on a process, which is a standard type of patent. If you are in support of a patent system, you have no principled ground on which to oppose software patents. (The same is true with the ad hoc opposition to “patent trolls–given a patent system, there’s nothing wrong with patent trolls. It’s a natural outcome and use of the system. Those who favor the system should stop whining about its predictable results.)

{ 19 comments }

Geech August 5, 2007 at 11:08 pm

In before Person.

Mike August 5, 2007 at 11:16 pm

Oh noes, another IP story.

Kevin B August 6, 2007 at 12:42 am

Every time you post an anti-IP article, a fairy dies.

ktibuk August 6, 2007 at 3:16 am

This is not an anti-IP article, it is an anti-patent article disguised as an anti-IP article and comments.

Brent August 6, 2007 at 10:02 am

Right, because patents aren’t IP… neither are copyrights… IP is something different…

DC August 6, 2007 at 11:40 am

I’ll write Person’s post for him:

Kinsella, replace all references to IP with references to physical property. That makes your argument irrelevant. Don’t you realize that IP advocates are actually interested in owning scarce property, too? (You do? Oh. . .uh. . .I mean, er. . .doesn’t matter, the point still stands). Besides, obviously you don’t; so, obviously you miss the irrelevance of your arguments. Also, you conceded that I won back in October, so this argument is over. Person out. . .

ktibuk August 6, 2007 at 12:27 pm

Copyrights and patents are different on so many different levels but it takes intellectual integrity and honesty to admit it.

The problem about patents is that it rejects independent discovery all together and burden of proof doesnt lie on the accuser but on the accused. And it is being used on simple things where indepedent discovery is so possible.

Anti patent is not anti IP.

Go read Rothbard a little… Oh but he was confused on a trivial issue like property rights, right. Sorry I forgot.

Stephan Kinsella August 6, 2007 at 1:42 pm

ktibuk:

“Copyrights and patents are different on so many different levels but it takes intellectual integrity and honesty to admit it.

? Of course they’re different in many details. But they both suffer from the same problem of legitimacy.

The problem about patents is that it rejects independent discovery all together and burden of proof doesnt lie on the accuser but on the accused.

This is not the only problem. And you are confused. First, to obtain a patent you must be the inventor–you cannot have learned of the idea from someone else. You had to have created/discovered it on your own (even if this was a re-creation of what someone else did). Now anyone who understands patent law realizes that if there were a serious “independent inventor” exception, it would significatly undercut and undermine the patent system. But even with such an exception, it would still be unjust, for at least three reasons. First, the term would be either infinite (which is clearly ridiculous) or it would be arbitrary. Second, once you patent a technique or design, it becomes known; those who learn of it b/c they see the patented device or read the patent are deprived of being able to invent it for themselves (what if A would have invented it in one year on his own, but now he reads about the invention, so he can’t now independently invent it; thus he cant practice it for another 17 years); and third, if others learn of your design and imitate it, they are not violating your rights.

“Anti patent is not anti IP.”

Whatever.

Go read Rothbard a little… Oh but he was confused on a trivial issue like property rights, right. Sorry I forgot.

Rothbard was right about patents, but he mistakenly thought you could use “copyright” to cover inventions; and he also mistakenly snuck into his argument the ownership of ideas.

ktibuk August 6, 2007 at 2:11 pm

You need to have balls in order call Rothbard confused on a property rights issue, I2ll give you that. Even Hoppe didnt have such a claim I believe.

Going back to patents.

The main issue is the first comer issue and dismissing the independent discoverer.

Other problems you talk about are not theoritical but practical problems.

Yes the original inventors ideas may have been copied but the burden of proof that a theft has taken place is on the accuser.

So unless the violator is caught stealing info from a lab or something it is very hard for someone to prove the other person copied the original.

Just like trade secrets the person who holds information that is valuable is responsible for keeping it safe as long as he can.

And these practical difficulties rule out copyrighting simple things like patterns, techniques and things that can easily be known from the end product. If you can figure out a formula of a drug from the actual pill then practically it can not be copyrighted.

Also in a real free market copyright contracts would exists but we wouldnt have people claiming to hold the monopoly on simple procedures which is covered today by patent laws.

Plus time limits are stupid for copyrights and just like every property, copyrighted IP should be subjected to inheritance.

Brent August 6, 2007 at 2:13 pm

So you want IP, but you are upset about your due process rights being violated? Very odd.

ktibuk August 6, 2007 at 2:34 pm

“So you want IP, but you are upset about your due process rights being violated? Very odd.”

I am an intellectual in my own right (although I dont earn my living with it) of course I wouldnt deny the existence of Intellectual production, thus property.

I am amazed at people who are intellectuals, who make a living producing and selling intangible intellectual products and oppose IP.

Do you think they pay Prof Hoppe for his body performance or his beautiful voice in the University where he works? Isn’t there a difference between a juggler and a professor?

And if you knew Murray Rothbards position you wouldnt be suprised at my position.

But this is because you are all bombarded by Kinsella here and Rothbard is never mentioned when it comes to IP.

Stephan Kinsella August 6, 2007 at 2:52 pm

ktibuk: “And if you knew Murray Rothbards position you wouldnt be suprised at my position. … But this is because you are all bombarded by Kinsella here and Rothbard is never mentioned when it comes to IP.”

Why you write on a position you are ignorant about is beyond me. In Against Intellectual Property, a 50 page paper, I discuss Rothbard’s views in detail and explain why he was mistaken in assuming his “contractual copyright” concept could work the way he thought it would.

ktibuk August 6, 2007 at 2:59 pm

Stephan

That is just one paper buried in the site that seldom gets mentioned, I am talking about literally hundreds of anti-IP posts here on the blog. And almost all of them are about patents too I might add.

Stephan Kinsella August 6, 2007 at 3:26 pm

ktibuk: “That is just one paper buried in the site that seldom gets mentioned, I am talking about literally hundreds of anti-IP posts here on the blog. And almost all of them are about patents too I might add.”

Buried! Are you nuts? It’s my most well-known paper. Do I need to constantly self-promote? And Rothbard’s views on “copyright” really has to do with patents (inventions–his example in fact is about a mousetrap!).

ktibuk August 6, 2007 at 3:39 pm

Ok I am sorry, Rothbard’s views are integral part of this ongoing IP debate here on the blog.

My bad.

Jean Paul August 6, 2007 at 5:15 pm

ok. ktibuk.

can you please run down why:
A) property like cars and houses exists, and
B) ‘property’ like patents/copyrights exist, and
C) why A and B are the same thing to you.

it would be appreciated.

Jean Paul August 6, 2007 at 5:19 pm

actually… if anyone can please underscore the non-utilitarian justification for private property at all, other than your body, that also would be appreciated greatly.

Brent August 6, 2007 at 9:19 pm

<...the non-utilitarian justification for private property at all, other than your body...<

The logical extension of the same reasoning.

Joseph Huang August 7, 2007 at 2:02 pm

Yes, people want to own other people and their property. Surely other people and their property are scarce. This is what patent and copywrite and trademark law is about.

Comments on this entry are closed.

Previous post:

Next post: