October 27, 2004  ·  Lessig

Declan‘s got a nice piece about a crack in the IP extremism that seems to define both candidates in this campaign. As he explains, Kerry has signaled a willingness to rethink the extremism in the DMCA. This, combined with the great news from the Sixth Circuit in the Lexmark case must make the IP extremists very sad. Poor IP extremists — at least if Kerry pulls this off.

  • http://www.lawhacker.com Andrew Greenberg

    There is another area in which Kerry is decidedly IP minimalist: pharaceutical drugs. In his speech at the Tampa rally last week, Kerry (who is much, much improved from his early days on the road) gave a powerful speech regarding access to drugs. In reciting the planks of his Fresh Start for medical care, he said he would “get tough” on corporate abuse of american patients and stop those who are engaging in “patent misuse.”

    First time I ever heard a politician use the phrase. I actually felt pulled to my feet.

    In any case, that is an intellectual wedge, now, for arguing against the improper extension of other forms of IP rights to stifle or chill innovation.

    As with the Red Sox, I am cautiously optimistic.

  • http://locut.us/~ian/blog Ian

    Sounds like Declan is indulging in some wishful thinking to me. Talk is cheap, particularly for a politician just before the election that will determine whether they have 4 years of ruling the free world, versus 4 years of obscurity.

    The Democrats are the party of Hollywood, and the tight race has probably forced Kerry to sell out to any corporation with money that doesn’t prefer Bush. I would love Kerry to prove otherwise, but I won’t believe it until I see it.

  • Anonymous Coward

    Okay, I’ll bite. How is it that the DMCA is “extreme” and the agenda of the OSS movement is not? The most coherent set of premises I’ve seen defending the OSS position would call for, at least, abolition of software patents and, at most, abolition of property generally.

    Let’s start with the least extreme end of the scale: abolishing software patents. Why should some clever programmer who creates something new be denied the fruits of his/her labors where the same system would allow, for example, the creator of a new and improved widget to protect their reasonable, investment backed expectation? There is a contradiction in any such system.

    Doesn’t such a system lead us down the wrong road? That is, what is the justification for denying someone a property right in a virtual creation (i.e. a creation that has a virtual embodiment) as opposed to a material creation (i.e. a creation that has a material embodiment)? I don’t think you can make principled distinctions between such creations at least as far as property rights are concerned. Therefore, if you say no property right in virtual creations, then there should be no propety right in material ones either. ==> abolish patents altogether.

    It seems to me those adhering to a view that IP should not exist and/or be given away for free are just as extreme as those who want to exert complete, unending control over digital creations or Mickey Mouse.

  • jmfayard

    The most coherent set of premises I�ve seen defending the OSS position would call for, at least, abolition of software patents and, at most, abolition of property generally.

    Please support the last assertion

    Let�s start with the least extreme end of the scale: abolishing software patents. Why should some clever programmer who creates something new be denied the fruits of his/her labors where the same system would allow, for example, the creator of a new and improved widget to protect their reasonable, investment backed expectation?

    Because he is not denied his fruit of his labors in any way. His work is already protected by copryright which is simple, cheap, fair and automatic (Sofrware patents are neither of that).

    Software patents is not about protecting a work or innovation. Those are already protected by copyright the same way they are protected by patents in other domains. Software patents is about having a juridical weapon of mass destruction to hamper the competition. (Microsoft against OpenOffice.org being just one example)

    See “Your webshop is patented” http://webshop.ffii.org/ and please tell me where innovation is stolen there.

    But there is no need to talk any longer. I�m very confident that the european parliament will show its power against the EU commission, just as it just wins a psychological battle by forcing EU-commision chief Barroso to do his homework again and to fire the right-wing vatican-minded sexist and anti-gay italian commissioner Rocco Buttiglione. Once software patents are banned from the biggest economic power of the world, they will not have much more value than the paper where they are written.

  • http://locut.us/~ian/blog/ Ian

    Responding to comment #3, which may be a troll – but I’ll bite anyway:

    Firstly, I have never seen any serious advocate of Open Source software advocate the abolition of property, that is a complete strawman.

    Secondly, software patents are wrong because the breadth of protection they grant, a two decade monopoly over *any* implemention of a given idea, is way out of proportion to the effort required on the part of the patent holder (which may be mere minutes or hours of development effort). The effect of this is the carniage we are seeing in today’s software industry, and this will get worse. Luckily it looks like the EU is unlikely to emulate the mistakes of the US here – so expect Silicon Valley to move wholesale to Ireland or some other European country soon.

    People aren’t “denied” property rights, the government grants property rights to people, as it is ultimately the government that decides whether they are to be enforced. Whether or not the government decides to grant a particular property right is a decision that must be made in the public interest. We can even see this in more conventional forms of property, such as “public accomodation” laws which prevent skopkeepers from excluding people from their property on the basis of race. Many of the rights granted by the government (ie. which the government agrees to enforce) that fall under the broad heading of “intellectual property” rights fail to meet this public interest test. Software patents are one example, the anti-circumvention terms of the DMCA are another. This is why we oppose them.