Corante

AUTHORS

Donna Wentworth
( Archive | Home | Technorati Profile)

Ernest Miller
( Archive | Home )

Elizabeth Rader
( Archive | Home )

Jason Schultz
( Archive | Home )

Wendy Seltzer
( Archive | Home | Technorati Profile )

Aaron Swartz
( Archive | Home )

Alan Wexelblat
( Archive | Home )

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.

What Does "Copyfight" Mean?

Copyfight, the Solo Years: April 2002-March 2004

COPYFIGHTERS
a Typical Joe
Academic Copyright
Jack Balkin
John Perry Barlow
Benlog
beSpacific
bIPlog
Blogaritaville
Blogbook IP
BoingBoing
David Bollier
James Boyle
Robert Boynton
Brad Ideas
Ren Bucholz
Cabalamat: Digital Rights
Cinema Minima
CoCo
Commons-blog
Consensus @ Lawyerpoint
Copyfighter's Musings
Copyfutures
Copyright Readings
Copyrighteous
CopyrightWatch Canada
Susan Crawford
Walt Crawford
Creative Commons
Cruelty to Analog
Culture Cat
Deep Links
Derivative Work
Detritus
Julian Dibbell
DigitalConsumer
Digital Copyright Canada
Displacement of Concepts
Downhill Battle
DTM:<|
Electrolite
Exploded Library
Bret Fausett
Edward Felten - Freedom to Tinker
Edward Felten - Dashlog
Frank Field
Seth Finkelstein
Brian Flemming
Frankston, Reed
Free Culture
Free Range Librarian
Michael Froomkin
Michael Geist
Michael Geist's BNA News
Dan Gillmor
Mike Godwin
Joe Gratz
GrepLaw
James Grimmelmann
GrokLaw
Groklaw News
Matt Haughey
Erik J. Heels
ICANNWatch.org
Illegal-art.org
Induce Act blog
Inter Alia
IP & Social Justice
IPac blog
IPTAblog
Joi Ito
Jon Johansen
JD Lasica
LawMeme.org
Legal Theory Blog
Lenz Blog
Larry Lessig
Jessica Litman
James Love
Alex Macgillivray
Madisonian Theory
Maison Bisson
Kevin Marks
Tim Marman
Matt Rolls a Hoover
miniLinks
Mary Minow
Declan McCullagh
Eben Moglen
Dan Moniz
Napsterization
Nerdlaw
NQB
Danny O'Brien
Open Access
Open Codex
John Palfrey
Chris Palmer
Promote the Progress
PK News
PVR Blog
Eric Raymond
Joseph Reagle
Recording Industry vs. the People
Lisa Rein
Thomas Roessler
Seth Schoen
Doc Searls
Seb's Open Research
Shifted Librarian
Doug Simpson
Slapnose
Slashdot.org
Stay Free! Daily
Sarah Stirland
Swarthmore Coalition
Tech Law Advisor
Technology Liberation Front
Teleread
Siva Vaidhyanathan
Vertical Hold
Kim Weatherall
Weblogg-ed
David Weinberger
Matthew Yglesias

LINKABLE + THINKABLE
AKMA
Timothy Armstrong
Bag and Baggage
Charles Bailey
Beltway Blogroll
Between Lawyers
Blawg Channel
bk
Chief Blogging Officer
Drew Clark
Chris Cohen
Crawlspace
Crooked Timber
Daily Whirl
Dead Parrots Society
Delaware Law Office
J. Bradford DeLong
Betsy Devine
Dispositive
Ben Edelman
EEJD
Ernie the Attorney
FedLawyerGuy
Foreword
How Appealing
Industry Standard
IP Democracy
IPnewsblog
IP Watch
Dennis Kennedy
Rick Klau
Wendy Koslow
Kuro5hin.org
Elizabeth L. Lawley
Jerry Lawson
Legal Reader
Likelihood of Confusion
Chris Locke
Derek Lowe
Misbehaving
MIT Tech Review
NewsGrist
OtherMag
Paper Chase
Frank Paynter
PHOSITA
Scott Rosenberg
Scrivener's Error
Jeneane Sessum
Silent Lucidity
Smart Mobs
Trademark Blog
Eugene Volokh
Kevin Werbach

ORGANIZATIONS
ARL
Berkman @ Harvard
CDT
Chilling Effects
CIS @ Stanford
CPSR
Copyright Reform
Creative Commons
DigitalConsumer.org
DFC
EFF
EPIC
FIPR
FCC
FEPP
FSF
Global Internet Proj.
ICANN
IETF
ILPF
Info Commons
IP Justice
ISP @ Yale
NY for Fair Use
Open Content
PFF
Public Knowledge
Shidler Center @ UW
Tech Center @ GMU
U. Maine Tech Law Center
US Copyright Office
US Dept. of Justice
US Patent Office
W3C


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

« Raid This! | Main | Supreme Court Grants Cert for Bowman v. Monsanto »

October 17, 2012

Posner on IP Restricting Creativity

Email This Entry

Posted by Alan Wexelblat

(still catching up the backlog, obviously)

At the end of last month Judge Richard Posner weighed in on his blog against "overprotection" afforded by patents and copyright. I find myself once again shaking my head in disbelief at something Posner has written.

Posner has been in the news a good bit this year. He first made news when he involved himself in the ongoing patent wars between Apple and everybody and issued a ruling that blasted the lawyers involved. and last month he got into a semi-public tussle of theories with Supreme Court Justice Scalia.

Part of Posner's theoretical framework is a critique, often based on economics, of patent and copyright protection. This is the substance of his September 30th column - a cost-benefit test for patent protection. Sadly he picks pharmaceuticals as his poster child, which shows off the bat just how bare a simple means test is for judging patent suitability, As I've argued in the past, the drugs marketplace involves special considerations that weigh against a needs-blind market analysis.

Posner's main point is that the software industry is presently overprotected by patents because software is cheap to make. This seems a little odd on the face of it - presumably if I run a large software development project that goes for many years and has huge cost overruns (i.e. any government software procurement) then that is more worthy of patent protection than a mobile app that's written over the course of a few months by a talented three-person team. This is the sort of argument economists make which tend to leave the rest of us scratching our heads in puzzlement. I understand that it accords with a theory that says "things that are more expensive to make need more protection" but when the theory leads to (dare I use this word) patently absurd results isn't it time to re-examine the theory?

Posner also that software patenting suffers from "a shortage of patent examiners with the requisite technical skills" - true, but also probably true for many other fields of cutting-edge technical innovation. Are there really more and better-skilled microbiology examiners? Or carbon-fiber materials processing examiners? I have no data, but tend to doubt it. There are indeed problems with software patenting, as I've written about before but these ain't it.

His discussion of copyright protection seems better. He notes that fair use is getting short shrift (but see my upcoming piece) and that copyright terms are too long. Most of all, he notes that copyright violation action requires showing of some willful infringement whereas you can infringe a patent you've never heard of, simply by going about your normal business. That alone is a significant impediment to software business and could stand some public discussion. Creation of only token penalties for accidental infringement is right up there with mandatory licensing on my "how to improve patenting" wish-list.

Sadly, Posner doesn't take any specific stand on the reforms he thinks are needed, just calling for Congress and the courts to devote "serious attention" to the problem. Right after they get done devoting "serious attention" to the budget deficit, one presumes. And prays.

Comments (0) + TrackBacks (0) | Category: Interesting People


POST A COMMENT




Remember Me?



EMAIL THIS ENTRY TO A FRIEND

Email this entry to:

Your email address:

Message (optional):




RELATED ENTRIES
Subscription Services for Books
Lest You Had Any Doubts, the ALA is on the Right Side Again
Deadly Effects of Unaffordable Medicines (TPP)
Planet Money on the Case Against Patents
FMC + Musicians vs FCC on Net Neutrality
Be the Potato Salad
These Businesses and Corporations are Not Your Friends
Aereo Loses