Copyright's Problems:

An article in the Oct. 19th issue of the journal Nature [subscription only, I'm afraid] pointed to the proliferation of online archives collecting together the papers of a number of well-known scientists, both historical (Einstein, Darwin, Lamarck, Newton, Lavoisier) and more recent (Pauling, Crick). One small item caught my eye; some of the archivists dealing with recent material were quoted as saying that their fears of copyright liability led them to omit incoming letters from the material that they were making publicly available; their reasoning was that copyright in those letters belongs to the authors, not the recipients, of the letters, that it would be prohibitively costly to try to obtain permissions from, say, everyone who ever wrote a letter to Francis Crick, and that without obtaining permission they were afraid of lawsuits and liability if they went ahead and put that material online.

It's a perfectly rational and reasonable decision on their part -- and a sad commentary on the current state of copyright law. Surely the overwhelming majority of authors of letters to Linus Pauling, say, or to Francis Crick, have absolutely zero interest in asserting their copyright in those letters to prevent re-publication -- indeed, the overwhelming majority of those letter-writers probably are not even aware that they own the copyright in those letters. And yet the possibility that there may be a few authors out there who would claim infringement keeps this trove of wonderful material, in its entirety, out of the hands of scholars and the public at large.

It's unfortunate and entirely perverse; this is not what copyright is supposed to be about or the purpose it is supposed to be serving. It is also entirely avoidable. In the "old days," (before 1976) U.S. copyright holders had to take certain affirmative steps -- placing a notice of copyright on documents, for example, or renewing the copyright when the initial 14- or 28-year period of protection was expiring -- to protect their works. The presence or absence of these steps signaled to the world at large whether the author had any interest in protecting his/her copyright and, in turn, made it relatively easy to determine which works could, and which works could not, be duplicated by others without the authors' permission.

Alas, we have, over the past several decades, eliminated all of those requirements, and this situation points out the cost that imposes upon us as a result. Larry Lessig (among others) has suggested bringing these requirements back -- his proposal calls for a short (5 or 10 years) initial term of copyright, after which copyright holders would be required to pay a very small fee (say $5) to renew their copyright. The vast majority of authors, having no interest whatsoever in enforcing their copyrights going forward, would allow their material to fall out of copyright; at the same time, those authors who wanted to continue to exploit their copyrighted works would be able easily to do so. The more I think about it, the better the idea looks to me.

Bored Lawyer:
Unfortunately, all these wonderful ideas are barred by the various IP treaties the US has entered into, incl. the Berne convention. For some reason, we think that the Europeans have a superior understanding of these things. Same mistake lead the SCOTUS to affirm the abominably long copyright term we enacted in honor Sono Bono.
11.22.2006 11:28am
BruceM (mail):
Copyrights (and patents, too, although to a lesser extent) are entirely counterproductive. They don't increase creativity, they hinder it. But it's just too easy and believable to claim copyright gives people a motive to create. It doesn't. At least nothing worthwhile. Yes, there would be no brittney spears wall calendars without copyright. But we'd still have every Neil Young album. Copyright makes absolutely no sense in the age of the ability to have and make instant, lossless, widespread copies of anything. The internet makes copyright law antiquated, and it's only due to the influence of outdated copyright cartels (MPAA, RIA) that it still exists.

Unfortunately, as long as people believe copying = stealing, copyright isn't going anywhere. And without critical thought, that theft meme is, unfortunately, too simple and convincing for most people.
11.22.2006 11:44am
Jeremy T:
So long as politicians get money from infotainment conglomerates, nothing will change for the better.
11.22.2006 11:44am

I am interested in reading your explanation as to why "copying = stealing" is too simple and unconvincing.
11.22.2006 11:57am
Jeremy T:

I have to disagree with your freaky libertarian view on this. Reasonably limited intellectual property rights definitely serve a useful purpose. That conclusion seems almost self-evident.
11.22.2006 12:04pm
Ragerz (mail):

Maybe you should think about it a little bit. Its not that hard to think of features that distinguish physical property from intellectual property.

Bored Lawyer:

Last time I checked, courts were required to give effect to domestic statutes over earlier enacted treaties. As far as TRIPS goes, passing a domestic statute in violation would be a good first step to start renegotiating that treaty.
11.22.2006 12:11pm
Jim Hu:
I recall there were some claims a while ago that this kind of copyright applied to emails where a sender objected to a recipient blogging the nasty email someone sent.
11.22.2006 12:12pm
Spartacus (www):
Freaky or not, the contrary to libertarian views on copyright are not merely "self evident". Even if limited IP protecetion does encourage creation, only pure utilitarianism would then coclude that it is therefore worth depriving people of liberty (including locking them in prison, or seizinf assets ultimately) for violating these rights. In any case, it is not evident that anything other than very limted IP protection actually encourages creativity of any utilitarian value.
11.22.2006 12:19pm
Hieronymous Coward:
Milton: Stealing means you no longer have the use of the stolen item. Copying means that you and I both have the use of the copied item. Copyright violation is a bit more complicated than theft. At best, copyright violation can promote science and useful arts. At worst, it disrupts the business model of those who produce useful information.

I am not anti-copyright; it takes my favorite author a year to produce a single novel. Without strong copyright enforcement, she'd have to get a real job, she'd have no time to write, and I would be without her books. However, I feel that copyright, like a speed limit or a building code, is a regulation and not a natural law. People who violate regulations are not criminals and should not be treated as such.

Extra credit question: What is the constitutional basis for copyright protection of pop music and pulp novels? Are either of these examples of "science and useful arts"? I truly don't understand this.
11.22.2006 12:30pm
pete (mail) (www):
So who holds the copyright on blog comments, which are sort of like the letters mentioned in this post? The creator of the comment is the original writer, but the comment is published on a website usually owned by someone else. Plus they are published on a website that is almost always free to access and very few blogs post their copyright information prominently.
11.22.2006 12:44pm
Bruce Hayden (mail) (www):
To one poster above, yes, most emails are protected by copyright, which typically belongs to the "author" (which may be the employer in a Work for Hire). You typically have some implied license to, for example, print it out, and maybe even to comment upon it and forward it, if the circumstances warrant it. Of course, since this is an implied license, it can be explicitly overriden, at least to some extent. Also though, even absent a license, you sometimes can copy or comment upon it under Fair Use.

Which brings me to the letters at issue here. I would think that since the object is scholorship, that at least in some, if not most, cases, Fair Use would apply. Of course, since Fair Use is most often determined on a case by case basis, I am not surprised that the lawyers involved suggested just eliminating the letters.
11.22.2006 12:44pm
Bruce Hayden (mail) (www):
Pete - see my email comments. Ownership is typically with the "author", with an implied license attached through custom and usage.
11.22.2006 12:46pm
Bruce Hayden (mail) (www):
With Pete's question about blog entries, I am thinking that it might be a good idea for a blog host to provide that anyone who posts to his blog grants the host a non-exclusive, paid up, unlimited copyright license to the blog post, in consideration for and a condition of being allowed to comment upon the blog entry.
11.22.2006 12:49pm
I like Lessig's idea with copyrights, but the more I think about it the more problems I see. If there is a cost to register copyrights, this creates all kinds of perverse incentives. For example, it creates a strong incentive to focus on longer works rather than shorter works. It also creates a strong incentive to keep work secret until it can make money.

Looking at new forms of media like YouTube videos and blogs, it seems clear to me that "works" are becoming shorter and are being published more immediately. Paying for registering copyright would work against both these trends.
11.22.2006 12:52pm
David W Drake (mail):
The ideas in the original post should be pursued. There is, to me a good basis for copyright: as Hieronymous says, otherwise the author may not take the year or years required to researcha and write the work. (Possible bias alert--my wife is a novelist). However, requiring the "author" to claim or lose the copyright immediately on publication would not damage the author who truly wants the work protected, and would not permit disgruntled commenters or writers of letters to the editor from claiming copyright when they don't like the use that the blog or the newspaper made of his "work," as I suspect that a copyrighted blog comment or letter would never see print or pixel. That is pretty much the case in the patent arena, is it not?

(Note: No rights reserved)
11.22.2006 12:54pm
Ragerz - no offense, but your explanation is as simplistic as the alleged simplicity in copying = stealing. If you or BruceM would indulge me (and others) and expound a little on this line of thought, I would appreciate it. I want to try and understand what this argument is (at its core) and whether it is a valid argument.
11.22.2006 12:54pm
David W Drake (mail):
Answer to Hieronymous extra-credit question:

The full quote from the Constitution is as follows:

"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[.]" Article I, Section 8.

The Framers intended for some authors to have their writings protected,and some readers of such works find them "useful" even if we intellectual snobs do not. If a work is utterly useless, it does not need copyrighting, as no one would copy it.

Or was the question rhetorical?
11.22.2006 1:05pm
Paul Allen:
So can I sue people who forward my emails now? Perhaps get criminal charges too?
11.22.2006 1:08pm
Bob R (mail):
Maybe the copying=stealing analogy is too simplistic, but the traditional/natural prohibitions against trespassing and poaching have similarities as well. Regardless of the wisdom of copyright laws (and we have a lot of unwise ones) they don't seem artificial or unnatural to me.
11.22.2006 1:11pm
lucia (mail) (www):
Hieronymous Cowar: Extra credit question: What is the constitutional basis for copyright protection of pop music and pulp novels? Are either of these examples of "science and useful arts"? I truly don't understand this.

[irony] No. Like the novels by your favorite author, neither pop music or pulp novels artistic or scientific use. Your favorite author should go out and get a real job thus depriving you of the books you like to read.

On the other hand, my favorite soap opera entertains me; everyone recognizes that entertaning me is useful.[/irony]

Now do you understand?
11.22.2006 1:53pm
arthur (mail):
Economic considerations favor keeping private letters private. This is not because private letters have economic value, but because the act of correspondence in writing is socially beneficially. If private letters to famous people could be republished without the consent of the author, fewer people would write letters, and those who wrote letters would be cosntrained not to say anyting they don't want the entier world to see. .
11.22.2006 2:41pm
KeithK (mail):

However, I feel that copyright, like a speed limit or a building code, is a regulation and not a natural law. People who violate regulations are not criminals and should not be treated as such.

I agree with you to a point. But driving 100 mph on a city street is dangerous and probably criminal. Someone who does that should be treated as a criminal. It's all a matter of degree. Back to the copyright analogy, if someone systematically reproduces copyrighted material and sells them in bulk for personal profit that's criminal activity, while photocopying magazine articles for personal use probably isn't.
11.22.2006 3:09pm
JunkYardLawDog (mail):
One problem not being discussed here is the ever increasing drag that copyrights and patents (especially software patents that should just be completely outlawed) and copyright and patent time lengths have on innovation and technological development through derivative works.

Things move so fast in the economy and on the internet today that software for example should have a maximum, not extendable, copyright period of between 3 to 7 years. Some even argue that with regard to software that after the non-extendable copyright period expires that the copyright owner should be required to release the source code to public domain.

There is an ever increasing and imho, bad, trend for companies in the technology and software businesses to seek to make money, not from developing and innovating, new, additional, and derivative works from their original copyrighted ideas, but instead to profit from stifling continued development, innovation, and commercialization of derivative works through lawyers and litigation.

Copyrights and patents both should be for much more limited terms, they should not be extendable, software should flatly not be patentable in any manner. If we followed this model, we would unleash a tremendous wave of futher development, new products, and derivative adaptive works on older products than we have ever seen before. Such a feeding frenzy of development of technology would result in much faster development of new and exciting products and technologies where one person with a great idea builds upon the work of others in a manner that these ridiculously long copyright and patent terms does not provide.

It might be good for IP lawyers, but it is far from good for society, development of new products and technologies, the improvement of existing products through derivative works, etc.

It doesn't take a 75 year or longer copyright period to reward the developers of software that will be completely obsolete in 5 years or less in most cases. Nor does protecting for 100 years the image of Mickey Mouse do anything to spur the development of other cartoon characters, etc.

Its time to stop applying the thinking of the 1800's in terms of product development cycles and usefulness to the high-tech era where knowledge is doubling every 5 to 10 years as opposed to every 50 to 100 years as was the case in the 1800s.

Says the "Dog"
11.22.2006 3:13pm
33yearprof (mail):
[quote]If private letters to famous people could be republished without the consent of the author, fewer people would write letters, and those who wrote letters would be cosntrained not to say anyting they don't want the entier world to see.[/quote]

Maybe, there would be a loss of 1 letter in 1,000,000.

If the author is too lazy or careless to put "(c) John Doe 2006" on his work, then the presumption should be that no protection applies.
11.22.2006 3:27pm
David Chesler (mail) (www):
Like pete and Nathan suggest, $5 per what? (Blog post comment? All comments to one post? All comments on ne blog?)

I suppose if it's too small to be worth $5 after it's sat for 5 years, it's simply not worth copyrighting; and if it is worth copyrighting, after 5 years you'll have a good idea which of your 10 line blog comments are likely to be the pearls worth the $5.

My local movie theatre has a poster reminding people that it's not okay to take pictures of their movies, and it says doing so would be a felony. (I wish I could photograph that poster, but I will try to write it down next time.) Any idea if there is any truth to that? Or is it like the non-local movie theatre which claims that insurance regulations prohibit you from bringing in outside food?
11.22.2006 3:27pm
Bored Lawyer:
"Its time to stop applying the thinking of the 1800's in terms of product development cycles and usefulness to the high-tech era where knowledge is doubling every 5 to 10 years as opposed to every 50 to 100 years as was the case in the 1800s."

Except that, ironically, the terms of patents and especially copyrights were much shorter 200 years ago than today. The original Copyright Act in 1790 had a term of 14 years renewable for another 14. The original Patent Act, also 1790, had a single 14 year term.

So don't knock the 18th century. Those numbers are far better than what we have now.
11.22.2006 3:42pm
cmn (mail) (www):
Paul Allen asks:

So can I sue people who forward my emails now? Perhaps get criminal charges too?

Absurd though it sounds at first blush, I think the answer is technically yes. Forwarding is distribution, which is one of the exclusive rights under the copyright code. The question is what sort of implied license do I give you by sending an email? Arguably many emails do imply a license to forward to at least certain persons to whom the information in the email is relevant. But if I write you an email that is clearly intended to be private and you forward or post it to a public website, you have committed copyright infringement unless you can make out a fair use claim. Fair use is a notoriously malleable four factor balancing test, so to say whether it would likely apply we need to flesh out our hypothetical a bit, but one of the more weighty factors tends to be whether the use made is commercial or somehow substitutes for uses that otherwise the author would have been compensated for. Presumably in the vast majority of cases an email will not fall into this category as most people don't make money by writing emails (though this would obviously be different if someone were, say, giving paid consulting advice via email, in which case he would probably not leave it to inference whether the recipient was allowed to forward). So many email forwarders would have a decent shot at a fair use defense if they're willing to bear attorney costs to bring it.

Of course, the other side of the coin is what realistic damages could the author hope to gain that would make it worth suing? In most cases there won't be any actual damages or infringer's profits resulting from the forward. (Caveat: I am assuming here something I have not researched and do not know for sure: that "actual damages" for copyright infringement include only the kind of damages that result from an author's reduced ability to profit from his own work as a result of the infringement, and not the kind of damages one might seek because the contents of the email are injurious to one's reputation when made public.) There are always statutory damages, however, which can range from $200 to $150,000 depending on the state of mind of the infringer. I find it hard to imagine too many scenarios in which courts would award more than a minimal amount for forwarding an email, which means the cost of suing would nearly always be greater than any expected gain. So the only reason to bring such a suit would be out of spite to punish the person who forwarded the email. Some aggressive lawyers who don't want their cease and desist letters published include threats to sue for copyright infringement in them, but I have seen such letters published on the web anyway and don't know of any cases in which a lawsuit was actually brought on that ground. (Does anyone?)

BTW, I don't think the archivists originally referred to should have much to fear from statutory damages given the following provision of the copyright code:

The court shall remit statutory damages in any case where an infringer believed and had reasonable grounds for believing that his or her use of the copyrighted work was a fair use under section 107, if the infringer was:
(i) an employee or agent of a nonprofit educational institution, library, or archives acting within the scope of his or her employment who, or such institution, library, or archives itself, which infringed by reproducing the work in copies or phonorecords

On the other hand, to the extent that the scientific correspondence is from people who are also famous scientists, such that there may be a market for a collection of their published letters, the fair use defense may be harder to win. This might also arguably be true of at least some casual emails (such as ones from celebrities that some people might be willing to pay to read).

It seems to me that the legitimate interest most people do have in keeping their personal correspondence private is just that--a privacy right, rather than a copyright sort of interest. Perhaps the better rule for these cases would be along the lines of a public disclosure of private facts claim: if the letter contains personal information of a sort that a reasonable person would regard as humiliating if made public (e.g., love letters), then doing so without consent is tortious. Under this rule, presumably the vast majority of the scientific correspondence that these archives would like to publish would not raise any problems.
11.22.2006 4:07pm
JunkYardLawDog (mail):
Bored Lawyer you are correct that the original terms were far better than the mess we have now. Perhaps I should have said we should stop using in the 20th and 21st centuries arguments and understandings of technology development cycles and useful lifespans applicable to the 1800's, to justify the eggregious increases in the time lengths of copyrights and patents today.

Of course the other and perhaps biggest reason for these innovation sapping, anti-competitive, monopolistic granting time lengths for copyrights and patents today is all the money funneled to congress critters by corporations seeking to protect their copyright/patent granted monopolies against the ravages of new thought and innovative derivative works.

Just one small example, how could Microsoft sell a bloated over-priced operating system like Vista, if some energetic entrepreneurial programmers and engineers were allowed to make competing derivative works based upon the now almost 8 year old Windows 2000 operating system or the almost 10 year old Windows 98 operating system. What about the ability of energetic entrepreneurial types to use derivative works from Windows 2000 to improve Linux distributions and their interoperability with all currently available windows operating systems.

Says the "Dog"
11.22.2006 7:11pm
John Noble (mail):
Aren't the archivists making a mountain out of a molehill? As David points out, the overwhelming majority of these authors have no interest in prosecuting copyright infringement claims. The few who might object cannot recover statutory damages or attorneys fees in respect of the unauthorized reproduction and display/distribution of unpublished works commenced prior to registration. They have no plausible claim for actual profits in the inclusion of these letters in an electronic archive unless the archivist supplies a measure of lost profits by charging for access to the letters. In the very rare case where the author of a letter can establish actual damages, the exoposure is limited by the three-year statute of limitations, and the archivist has a very strong fair use defense.

It seems to me that the archivists are being over-cautious, probably as a result of legal advice that focuses on far-fetched scenarios that border on the imaginary, and that are designed to secure the attorney's engagement to track down authors and negotiate written permissions. The resurrection of formalities urged by Lessig will only impose costs on copyright holders, who will reflexively reserve their rights in the broadest terms, routinely refer permission requests to their lawyers, and recover all of those unnecessary costs in license fees.

I'd like to see some evidence that the legal exposure here is real -- even one case that resulted in significant litigation/settlement costs or a judgment based on the inclusion of private correspondence in online archive that the archivist was willing to remove on request. Otherwise, I don't have any problem advising archivists that if there is no registered copyright, they can include the letters, along with an express undertaking to take them down on request, as long as they provide free public access.

Am I missing something?

John Noble
11.22.2006 7:33pm
KDeRosa (mail) (www):
The term for patents is now 20 years from date of filing. Since it takes on average about 3 years for a patent to wend its way through the PTO, we're really only talking about 3 years more term than the original 14 years from date of issuance. And let's not forget that maintenance fees (which increase dramtically in expense) must be paid at the 3.5, 8.5 and 11.5 year mark, so most inventors permit their patents to fall into the public domain far before the theoretical patent term expires. I'd suggest that the patent system gets the balance much closer to right than the copyright system.
11.22.2006 8:10pm
JunkYardLawDog (mail):
KDeRosa, yes perhaps patents time limits are much closer to getting it right than copyright term limits, but even the patent limits are too long and stifle further product development and innovation more than is justified. Copyright time limits are just plain orwellian they are so far out of line.

Further, there is no ameilorating independent creation exceptions to patent matters as there are for copyright.

Finally, there are whole categories of patents that should be completely outlawed as patentable categories. Some of the most absurd and ridiculous patents ever granted involve software patents granted over the years by patent office personnel with absolutely no clue of what software is, how it works, what it does, and the dilitory effects of granting the absurd patents that have actually already been granted.

Software should never be patentable for any reason ever. I suspect there are other high tech categories that may fall into this same situation of never should be patentable under any circumstances, no way, no how.

Says the "Dog"
11.22.2006 10:02pm
BruceM (mail) (www):
Milton &JeremyT:

Stealing is depriving someone else of their property. Walking in to a Ford dealership and driving off with a Ford Explorer without paying for it deprives the Ford dealership of its property.

If, on the other hand, I had a machine that magically created that same model Ford Explorer out of thin air, nobody is deprived of property, even though I've made a perfect working copy of the vehicle. If making the copy costs considerably less than buying the vehicle the ford dealership (and Ford, Inc. as well including everyone else upstream) will lose money through lost sales, and maybe go out of business. But lost sales are NOT the same as stolen property.

Lost sales are the basic operating force behind economic competition, the driving force of any capitalist system. When the refrigerator was made, those businesses which sold ice blocks (a thriving business in its time) lost lots of sales, and ultimately went out of business. But nobody would say the refrigerator businesses STOLE from the ice block sellers. Same with a person who made their own ice blocks at home (somehow) rather than buying an ice block from an industry seller.

Nothing is more unamerican than using the law to enforce and preserve business models. This is all copyright is and does. It's wrong, and not only is there no net benefit, my position is there is no benefit whatsoever. The negatives of copyright (one of which is detailed in the original post to which I have replied, supra) FAR outweigh any illusory benefits such as the making of crappy, commercial, pseudo-art (like brittney spears records).

Copyright would be wrong even if the only punishment for infringement were a nominal $1 fine. But locking people up in prison, forfeiting their property, and fining them massive amounts makes copyright downright immoral. No business model should be preserved by invoking the force of the government. As a lawyer, I personally have a problem with the state punishing people for "unauthorized practice of law." I don't (or at least, should not) need the governmental threat of locking people up to prevent competition in my job market. If someone who didn't go to law school can do a better job (and maybe they could), they should be so permitted. No hypocrite here.
11.22.2006 11:05pm
BruceM (mail) (www):
Oh yeah. As for patents, which are also abusive, but more tolerable because they're for a legitimate "limited time" and not automatic, I have a simple solution for current patent abuse, which stems from everything being patentable (and patented) despite blatant, and not post hoc, obviousness and lack of originality. Allow 1,500 patents per year, and only grant them to the 1,500 most original patents applied for per annum. I'm being generous here, as there are no more than 300 to 500 inventions each year truly original and worthy of a patent. Combining two random things, like chap-stik and a cellphone, is not original and should not be patentable. The telephone is original and patentable. A paper shredder that cuts really really small pieces of paper to make it even more secure is not original and not patentable. A matter teleporter is original and patentable (if a working model is produced).

So, gather the 450,000 patent applications each year, and grant the most original 1,500 of them. You'll still have over a thousand frivilous, unworthy patents.
11.22.2006 11:13pm
Dave Hardy (mail) (www):
I recall that in my time at Interior someone (not in gov't) wanted to published a book of letters to deceased left at the Vietnam memorial, and was told that this would violate the copyright, even of anonymous writers, unless their consent was secured. So I suspect that, yes, forwarding an email, or even cut and pasting a comment here, would be violation of copyright, absent fair use (which no one can clearly define).

So much for "copying=stealing." Paradoxically, I can quote any verbal statement without such theft, but not a written one. I can appropriate a patent after 17 or whatever years, and that is not a problem, even though the creator invented something of breathtaking importance, but copying a movie or song back to, what, 1923, is an offense. So songs and movies seem to be of greater social value than physical creations. Of course, not being cynical, I would not attribute that to entertainment having more bucks and clout than science... couldn't be....
11.23.2006 12:15am
The idea that makes the most sense seems to me to be requiring those who wish to maintain their copyright in letters and other materials to put the c all rights reserved prominently in the material. The current regime in which the copyright is created as the work is created, without notification to the public, even though the copyright must be registered before suing seems to me to be a bit "off" in that it provides no notice of intent - the problem the letters editors are having.

Re Windows - one of the constant tradeoffs is copyright vs. trade secret vs. patent. Does Microsoft actually rely on the copyright for Windows, or does it rely on trade secret status?
11.23.2006 12:22am
JunkYardLawDog (mail):
Re Windows - one of the constant tradeoffs is copyright vs. trade secret vs. patent. Does Microsoft actually rely on the copyright for Windows, or does it rely on trade secret status?

As far as I know Microsoft and all software companies rely predominantly on copyright, but over the last 5 years or so, all software companies have increased dramatically their awareness of and use of patents and patent applications. Microsoft filed for a patent on the FAT file system used since Microsoft originally stole it from CPM and a small Seattle Software company. So Microsoft and others have been busy trying to perpetuate their monopolies and market positions not through innovation and continual improvements, but through ridiculous patents for software or pieces of their software or for things that aren't even part of their commercial software but will, if granted, harm the competition. The granting of software patents are in fact a patent for a written list of instructions using specific words for those instructions and put together in a unique order (i.e. copyrightable yes, patentable no, at least not properly so imho. Its like granting patents for a pan fried catfish recipe).

As for trade secrets I'm sure they use whatever the law allows and then some. They can use NDA's to prevent the disclosure of a trade secret, but if a trade secret becomes public knowledge what recourse do they have against an innocent party who reads of the trade secret in the local newspaper and then puts that information to use in a product??

Says the "Dog"
11.23.2006 2:24pm
Frater Plotter:
One obvious libertarian point here is that any "intellectual" property represents a restriction on the use of physical property. If I own a printing-press, ink, and paper, then the rights of a property owner permit me to peaceably use my property as I wish: to set type and to publish whatever arrangement of letters that strikes my fancy.

Any legislative restraint upon _which_ combinations of letters I may print is therefore a limitation of my rights as a property owner. Libel law, for instance: I may not print and distribute leaflets that defame John Smith; this limits what I may do with my property. Copyright, likewise: if the poems of John Smith are under copyright, then I am restrained from printing those combinations of letters which spell out those poems.

We can understand the right of John Smith not to be defamed, as being some kind of property right that he has in his good reputation. It is wrong for me, we're told, to falsely deprive him of his reputation. (It is not wrong for me to truthfully deprive him of a false reputation: if he is known as an honest man but I expose his lies and hypocrisies, I do no libel thereby.)

The copyright is somewhat different. It is not merely the right not to be plagiarized; indeed it is separable from plagiarism. If I publish John Smith's poems without his permission, but _with his name on them_, then I do no plagiarism. I am not taking credit for his work.

Yet copyright is also not the socialist guarantee of an income for artists, which some make it out to be. It is not the right of creators to make money from their work, either: it does not guarantee that a work will be profitable just because it is creative.

Copyright is somewhere in between these.

Copyright is somewhat more problematic as it extends to derivative works. Just because John Smith writes a story about a certain set of characters, how is it that I should be restrained from writing a different story about them? This clearly comes up in the case of fan fiction. It also comes up in the case of similar melodies in musical works -- famous cases include George Harrison's "My Sweet Lord" (found to be derivative of "He's So Fine") and the theme from "Ghostbusters" (found to be derivative of "I Want A New Drug" by Huey Lewis).

Spider Robinson's short story "Melancholy Elephants" is instructive with regards to the question of perpetual copyright considered as a legal right of authors. He raises the point that in the Western musical scale there exists a mathematically limited number of melodies of any given length. If a recognizable tune of eight notes (each chosen freely from the octave) is copyrightable, then there exist only sixteen million copyrightable tunes.

What if there are more than sixteen million artists?
11.23.2006 3:29pm
BruceM (mail) (www):
Does anyone really believe that copyright (more specifically, the promise of enforcable exclusivity) causes more works to be created than works which are prevented from being created (through direct threat of litigation or through ex ante fear of litigation)? I have absolutely no doubt that copyright is a huge net loss for those goals set forth in the Copyright Clause. A HUGE net loss.
11.23.2006 10:54pm