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Donna Wentworth
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Ernest Miller
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Elizabeth Rader
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Jason Schultz
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Wendy Seltzer
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Alan Wexelblat
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About this weblog
Here we'll explore the nexus of legal rulings, Capitol Hill policy-making, technical standards development, and technological innovation that creates -- and will recreate -- the networked world as we know it. Among the topics we'll touch on: intellectual property conflicts, technical architecture and innovation, the evolution of copyright, private vs. public interests in Net policy-making, lobbying and the law, and more.

Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.

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Copyfight, the Solo Years: April 2002-March 2004

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In the Pipeline: Don't miss Derek Lowe's excellent commentary on drug discovery and the pharma industry in general at In the Pipeline

Copyfight

« The Web Never Forgets | Main | Joyce vs Joyceans »

June 15, 2006


COMMENTS

1. bill on June 15, 2006 12:19 PM writes...

Don't most lawyers recommend against looking for patents that one might be infringing in order to avoid the extra damages associated with willful infringment?

Permalink to Comment

2. Neo on June 16, 2006 2:51 PM writes...

Isn't there an additional problem? The law that is on the books is, in theory, freely available from any public library (though it often takes an expensive lawyer to interpret it reliably for you). A patent search has an up-front fee, the last time I checked, denying entry into the "doing something that requires actively avoiding infringing patents" market to the little guy who can't afford one.

More generally, the notion of cleaning up patent language, the law, legal language, and so on to make it easier for the average Joe to determine a reasonably broad "safe zone" in which they can act with zero danger of liability of any kind is missing the point by a country klick. Said point being that the whole purpose of the system is to make it impossible for anyone to do that without lotsa money, so as to keep the average Joe dependent on remaining beneath the system's notice to survive, and thus to keep the little guy little and safeguard the incumbents (especially the lawyers themselves) against any possible danger from upstarts.

Likewise, the law is full of grey areas and contradictions for the exact purpose of ensuring that doing so much as taking a deeper-than-normal breath can be found to be illegal with enough effort and a powerful enough interest wanting a guilty verdict, again to ensure the small guy is kept small and easily controlled. Since only the already-rich can buy their way out of trouble, making it impossible to "prove innocence" your way out of trouble given a determined enough adversary again prevents the rich from having to worry overly much about being usurped.

The baroque system is, in other words, exactly the same in purpose as the system of titles in past feudal societies: to maintain a defacto aristocracy and erect nearly insuperable barriers to entry into said aristrocracy.

The whole system and the incumbents have to be overthrown before the reforms you propose stand a chance of being implemented. Off with their heads!

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