Subject: Re: "incentive void" (was Re: A different patent covenant...)
From: <stephen@xemacs.org>
Date: Tue, 24 Oct 2006 20:49:15 +0900

simo writes:
 > > The area of the monopoly provided.  In general, if you need to protect
 > > a valuable technology whose working is visible to the public, a patent
 > > works, copyright does not.  Cf. the GNU Project, whose primary goal in
 > > the early days was circumventing copyright protection.  They were
 > > pretty darn successful at it, too!
 > 
 > I see your point, but consider this: how long did it take from start to
 > an effectively competing product?  I'd say at least 10-15 years.

Excuse me?  By the late 1980s I was already using GNU grep and similar
tools via DJGPP on DOS.  Your view of what constitutes a "product" is
way too narrow, especially vis-a-vis patents.

 > >  > Oh, but in the field of software there is no such possibility except in
 > >  > very rare cases. Copyrights block free riders as well,
 > > 
 > > Nonsense, unless you insist that "free" means "exactly zero cost".  Go
 > > reread the GNU Manifesto. [...]
 > 
 > It's non-sense only if you consider "zero" the cost of rewriting
 > software, which is usually the costly part of the game[1], and that's
 > why I say that copyright is effective.

It's costly, but *rewriting to a proven spec is far less costly than
developing the spec and writing the first version*.  That "far less
costly" is plenty to give the second comer an big advantage in a price
war.

Furthermore, most patent claims are way too narrow for the few lines
of code that implements them to escape the fair use loophole.  Now
what?

 > After all the patent system has been invented to grant the inventor
 > return of investment, if copyright can do the same I don't see why we
 > should grant another form of protection on top of it.

Copyright can't do the same, and it's not "on top".

 > > The same as in any other field: providing a monopoly as compensation
 > > for the social value of innovation that otherwise would not occur.
 > 
 > The problem is that you have double protection,

What do you mean by "double protection"?  Expression can't be
patented, devices can't be copyrighted.

As for "double protection" being a "problem", I really don't see why.
If there's a law against trespassing, should I lose the right to put
up a fence around my property?  Note that a copyright license
*contract* really is double protection, as you can sue under either
contract law or copyright law for the same violation.  Should a vendor
be required to give up copyright in order to be allowed to use license
contracts?

 > > How much value there is (including the value of inducing software
 > > engineers to learn better reuse practices and inducing improved
 > > indexing of knowledge, both of which have clearly higher value under a
 > > system that grants patents), and whether it is larger than the costs
 > > of the monopoly (including the chilling effect on future innovation
 > > and the pure frictional costs of patent sharking), is an empirical
 > > question.
 > 
 > Yes it is, but it is _the_ question you have to answer _before_ allowing
 > such system (now it is late for some countries and that's a very big
 > problem).

The answer *was* "in theory, yes."  That's why we have those systems;
all they really had at the time was theory.  Shooting at Thomas
Jefferson with a 20-20 hindsight scope is not fair.  (Maybe the
relevant decision doesn't actually go back to Thomas Jefferson, but
the court decisions that forced the USPTO to implement software
patents were good decisions in law, AFAICS.  The court did not have
the option to say, "we don't know enough about the costs and benefits;
fund 20 years of academic research on the matter and then we'll hear
your appeal".)

 > > Since that necessarily indirect measurement has not been done to
 > > everyone's satisfaction yet, it's rather important to get the theory
 > > right, otherwise we will not be able to interpret the direct
 > > observation correctly.
 > 
 > Getting the right data to validate any theory seem a very difficult
 > problem today. Too many interests involved :-/

Getting the data is hard, period, but "interests" have very little to
do with it.  The kind of data that is needed is correctly considered
proprietary (for firms) or private (for individuals), and the record-
keeping itself is tedious and not very useful otherwise.  The problem
with the interests is that they will reject the results of any
research, however well done, that doesn't serve their interest.

Consider any thread on Slashdot. :-)