Subject: Re: The term "intellectual property" considered useful
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Mon, 29 May 2006 15:08:16 +0900

>>>>> "Thomas" == Thomas Lord <lord@emf.net> writes:

    Thomas> Stephen J. Turnbull wrote:

    Thomas> Sure.  The main thing I find in common with RMS are the
    Thomas> recognitions that innovation is increasingly cumulative
    Thomas> with patents maybe applying to tiny parts, that the
    Thomas> validity of patents is increasingly an issue, and that too
    Thomas> much leverage to patent holders is stifling as evidenced
    Thomas> by trolls.

I don't think "innovation is increasing cumulative" has any useful
meaning here.  Innovation has always been cumulative, patents have
always applied to tiny parts as well as standalone products, and the
importance of the validity issue is always great when the examiners
encounter new areas of technology.  I'm projecting from well-known
economics of IP to the law itself, but I believe the court is simply
recognizing that software and business method patents are presently in
that *stage* (a couple of decades of experience notwithstanding,
that's not a terribly long time in common law or regulatory
bureaucracy)), and not presuming any long-term trend.

rms *does* assert such a trend (or even a fact).

    Thomas> Nothing in the grants of the software patents is
    Thomas> reasonably interpreted as forbidding the practice of
    Thomas> programming in general -- especially programming with a
    Thomas> large innovative component -- other than to
    Thomas> cross-licensees and those paying ransom to trolls.  Yet it
    Thomas> is increasingly hard to imagine how courts can continue to
    Thomas> uphold these patents at all without invoking that effect.

As I quipped before, your failure of imagination does not create a
reality. :-)

How do you feel about the argument (er, maybe you'll be more
responsive if you think of it as a "drug-induced hallucination" and
humor me until the bummer's over :-) I alluded to in my response to
Taran?  Ie,

1.  Software developers (as individuals and as organizations)
    generally suck at reuse.
2.  Arch is not a solution to this suckage; it's not a technical
    problem, it's an incentive problem.  Unsurprisingly, programmers
    would rather be programming than assembling Lego blocks (and they
    probably justifiably fear obsolescence due to "automatic
    programming").[1]
3.  Patents provide both incentive and framework for formalizing
    reuse.
4.  The transactions cost problem posed by patents can be solved by
    Awiki[2] technology.

Note, nowhere do I mean to make a claim that patents wouldn't suck
from the point of view of FSBs.  My point is that I understand you to
be claiming that patents suck for everybody but patent trolls and
existing IP yokozuna[3] like IBM, and even IBM sometimes acts like
they'd like to fire their lawyers and hire developers with the
salaries freed.  I don't think that "patents suck for *everybody*"
needs to be true.

"Bullshit" might be a reasonable answer, but I'd prefer to see it
taken up point by point. :-)

    >> [Injunction makes it impossible to keep operating, thus there's
    >> a big difference at the margin.]

    Thomas> I guess I would see that as an *example* of the
    Thomas> unreasonableness of the bargaining tool that trolls get if
    Thomas> injunctions are easy to get but I don't see what, in the
    Thomas> decision, you are citing there when you attribute that
    Thomas> specific scenario to the court's reasoning.

I didn't mean to attribute that to the court's reasoning in this case.
This is a general principle, AFAIK well-founded in Anglo-American
legal precedent, that legal economists refer to when advocating
damages over injunctive relief.


Footnotes: 
[1]  This is not a claim that it *would* happen, just that an
excellent reuse infrastructure makes it plausible enough that the risk
of unemployment can't be ignored.

[2]  For those who don't follow Arch development, Awiki is one of
Tom's recent brainstorms, and more or less an implementation of his
ideas about "near/medium future digital media economics."

[3]  Grand Champion of Sumo Wrestling.  Nimble for his size, highly
skilled at his sport, behemoth.

-- 
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