Subject: Re: Thought crimes
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Wed, 27 Dec 2000 11:59:24 +0900

>>>>> "shap" == Jonathan S Shapiro <shap@eros-os.org> writes:

    shap> You seem to be arguing that patent effectively deprives the
    shap> "second place" developer of their investment. I had not
    shap> considered this point, and in some cases it is clear that
    shap> you are right.

There is a very large economic literature, based upon precisely this
point, called "R&D racing" models.  (Most of it concentrates
_exclusively_ on this issue, so I can't recommend it as a basis for
policy discussion.)

However, I've always distrusted that literature because you would
expect that much of the "wasted" R&D effort would (a) be useful in
developing substitute inventions which do not infringe claims of the
patent and (b) provide a foundation for profitably licensing the
patent itself.

In the proprietary context, then, the real problem is the transactions
costs of researching and enforcing/defending infringement claims.

(a) remains valid in the free software environment; (b) is much less
so since free software renounces the use of the obvious tool for
generating revenues from which to pay licensing fees.

Little of this applies to copyright; where it seems to, it's probably
"merely" the inefficiency of the monopoly itself in a new guise.

    shap> For copyright, the essence of the problem is that copying
    shap> can no longer be prevented, and that John Q. Public has not
    shap> yet internalized this fact.

I don't understand what you mean by this.  I would say JQP seems to
understand that intuitively; he doesn't think about it, he just
copies.

If you mean the chattering classes and corporate lawyers, I agree that
they don't understand (or in the case of "patent sharks", understand
all too well) just how much modern technology has increased the cost
of trying to enforce IP rights.  But the practical impossibility of
preventing "retail" copying is understood, I think.  Some managements
will still invest in copy protection dongles and cryptographic storage
systems, but this is the techno/corporate equivalent of believing
"pyramid power" will cure cancer.  Isn't it?  So as Mark Miller
pointed out elsewhere, "after enough iterations [...], content owners
will wise up or die."


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