Subject: Re: The term "intellectual property" considered useful
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Sun, 28 May 2006 20:03:46 +0900

>>>>> "Taran" == Taran Rampersad <cnd@knowprose.com> writes:

    Taran> So, let's hear what you think

Why, thank you for asking!

I think that the "transactions costs" of software patents are too high.
Those transactions costs include

1.  The cost of patent search.

2.  The legal costs that are imposed by the frequency of independent
    invention.

3.  The chilling effect on inventive activity outside of large
    corporations that the costs (1) and (2) entail.

Then

4.  The evidence is pretty strong that most innovation is initiated in
    small organizations (even if it is acquired and promoted by large
    ones), and therefore I think patents are a large net negative in
    software.

This is notwithstanding the unanimous opinion of the software
engineering community that reuse is the only way to attack the
"essential" productivity problem, and the obvious similarity of patent
search to the kind of search that would be required for the kind of
reuse that would result in order-of-magnitude productivity
improvement.

It is my entirely self-serving belief that this is true even if you
raise the originality and unobviousness bars for software patents to
the point where they'd have almost no economic effect.  It's obvious
why I believe that---because I want to; I have no evidence for it.

On the other hand, copyright has no such transactions costs; you
decide whather you want to acquire the software or build it, etc.  So
I think copyright in software is probably a good thing.  And at
current rates of obsolescence, I don't think it matters much if
copyright in software is eternal, although optimal period is probably
more like 10 years.

Based on those facts (as claimed by me), I think that FSBs should
ignore RMS and those factions in the FSF and LPF that argue that
software freedom is a fundamental right, or that IP is fundamentally a
broken concept.  While freedom is a good thing, I've seen no
convincing arguments that our enjoyment of programming constitutes an
unalienable human right comparable to "life, liberty and the pursuit
of happiness", or the specific rights of freedom of speech and
assembly.  It's purely an economic issue, where the interest of
society happens to happily coincide with our (== hackers')
self-interest.

    Taran> 'Religious'. That's a pretty convenient way of saying that
    Taran> any perspective that one does not agree with is not
    Taran> worthwhile.

No, it's a convenient way of saying I don't expect to convince those
who believe differently on "religious" issues, and I don't expect them
to convince me.

I also use it to imply that I believe they're unlikely to convince
anyone who isn't a free software hacker (or living with one).

    Taran> The trouble I'm having in negotiating your discussion is
    Taran> finding what it is that you believe is worthwhile, other
    Taran> than what lawyers and law libraries say.

In this thread so far, I believe there has been essentially no
worthwhile content other that that directed to describing what the law
says, and that has been almost none.  The remaining content has been
purely metaphysical, and bad metaphysics at that.

    Taran> In essence - what is your 'religion'?

Empowerment.  If *using* software empowers lots of people, and IP
encourages production of software empowering *users*, too bad for the
hackers.  On the other hand, if it's the act of hacking that empowers
people, then maybe IP should be abolished on principle.  I've come to
know several thousands of people over the last few decades; only a few
score hack for the fun of it, and that sample is *heavily* biased by
the fact that I like to hang out with people who hack for fun.

I conclude that it's purely an economic issue, of whether the
existence of IP actually encourages or discourages the production of
software that *non-hackers* value.  *That* is a tough call.

    Taran> Maybe how it should work is more important to many than
    Taran> 'how it works'.

Of course it is.  Hackers are just as selfish as anyone else; they
think it should work the way they want it to work, because that's
what's good for them, and people like them, and that's what they know
best.  Why they should want anything else, I can't say.  I don't see
why the larger society should give a damn what hackers want, though.
Hackers should sell their contributions and buy what they want, just
like everybody else does, no?

Nobody *likes* red tape and paperwork, yet the world is full of it.
Maybe software development can be different.  I'm not going to hold my
breath, especially given that the primary purpose of software is
*enabling paperwork*.

    Taran> Yes, that's all well and good. So we should roll over and
    Taran> play dead and let the next generation sort it out.

I said nothing of the kind.  My reasons for a strategy founded in
current reality are quite different.

    Taran> That strategy has worked so well in the past.

In fact, it has.  That strategy is the basis of common law.

    Taran> The foundation of nature is much more solid that the
    Taran> bickerings of a bunch of deranged homo sapiens - which, in
    Taran> reality, is what the whole 'intellectual property' thing
    Taran> really is.

You've made *your* religion quite plain, haven't you?

    Taran> It's a reactionary bandaid to a problem that was not
    Taran> initially well thought out,

By which you mean that Jefferson and colleagues set up a system that's
really inconvenient to independent hackers, and conducive to creation
of oligopolies of firms with large patent portfolios which can be
cross-licensed in bloc, but you don't want to work for such a firm.  I
hope you don't have to work for such a firm, but really, that's small
potatoes.  There are very few auto designers and rocket scientists who
have gotten rich, or even famous, based on something they cooked up in
a garage loft.  Why should software engineers be special?

I think it's quite possible that some kinds of IP (eg, software
patent) have so little benefit that "set it to zero" is the right
heuristic.  But it's an issue of a balance that can't be leveled under
current conditions, not fundamental brokenness.

And who knows?  As David says, we don't know what technology will
bring in the future.  Some AI system may make patent search and
classification sufficiently cheap and reliable that patents make
economic sense, just as contract and other commercial law does.  It
will just be a cost of business, not a risk that could take your
business away from you.

It could usher in a golden age of reusable components!

    Taran> Maybe you like the system, and that's OK.

I don't like the system.  I do development purely for fun, and hardly
use any applications that aren't a couple decades old, and IP is a
massive management pain in my ass.  Especially that owned by the FSF,
which is a rather piquant paradox.  Because I recognize my own self-
interest, I do not trust my intuition on the matter.  Because I think
I recognize the same self-interest in the writings of hackers on the
subject, I don't trust their intuitions, either.

    Taran> Describing what 'could be'

Go ahead and do so.  But if it requires rearranging the whole society
of billions of humans to make a couple hundred thousand hackers happy,
I think you've got the tail wagging the dog.

If you're not planning to be that radical, then you admit you plan to
start with "what is", and it behooves you to know that is.  If you are
planning to be that radical, you don't need to know squat.  You also
will almost certainly be ignored.


-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
http://turnbull.sk.tsukuba.ac.jp/        Tennodai 1-1-1 Tsukuba 305-8573 JAPAN
        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory