Will the Xbox 360 Be Banned in America?
Master Chief is set to join the ranks of American unemployed.
It could be game over for Microsoft’s popular Xbox 360 video game console in the United States. Fresh off announcing 67 million consoles sold since its product launch seven years ago, Microsoft faces the prospect of a sales ban which could hit later this year.
The trouble began in April when Washington judge David Shaw ruled against Microsoft in a patent-infringement suit filed by Motorola Mobility. The complaint alleged that Microsoft was unjustly profiting from video decoding and Wi-Fi technology belonging to the plaintiff and utilized in the Xbox 360 console. The same judge recently recommended that the sale of Xbox 360 consoles be banned in the United States. The next stage is a ruling by the International Trade Commission expected in August. After that, the final decision to ban sales could rest with President Barack Obama.
The story is consequential on multiple fronts. There is the obvious potential to upend the American console market just in time for the holiday sales season. There is the political question of whether the president would risk upsetting one of his core constituencies, young people, by banning one of their favorite toys just prior to Election Day. More fundamentally, there is the moral issue of whether such a ban is proper.
In its defense, Microsoft argues that a sales ban in the U.S. would adversely affect consumers. IGN senior editor Daemon Hatfield quips:
Judge Shaw suggested Nintendo and Sony could handle any extra demand, so I’m not sure the good judge understands how video games work.
In fact, whether consumers would be inconvenienced by a sales ban is irrelevant to both the law and the moral principles which inform it. Protection of intellectual property rights through the enforcement of patent, trademark, and copyright is both just and demonstrably beneficial to individuals trading in a free market.
Despite assertions to the contrary by many academics and pundits claiming to be libertarian, intellectual property law is not a statist intrusion. As masterfully explained by George Mason University School of Law professor Adam Mossoff, in a lecture viewable here, the claim to intellectual property is the root of all property rights. As with tangible property, convenience is not an excuse for trespass.
Complimenting the morality of why patents are proper, the practical outcome of intellectual property law is better products and services for consumers who voluntarily trade with producers. Indeed, it is ironic that Microsoft would cite consumer convenience as an excuse for patent-infringement when they go to such lengths to protect their own intellectual property.
The Xbox 360, like so many products on the market, is an amalgam of patented technology. Some of those patents are owned by Microsoft. Many others are licensed from other patent holders. Those licenses are negotiated to maximize profit for each party involved in the console’s production. Without any one of them, the final product would not be possible in its given form. If Motorola’s intellectual property is part of the Xbox 360, then they are entitled to compensation for its commercial use.
That is one reason why a ban of Xbox 360 sales in America is unlikely to occur, because Motorola has an interest in profiting from a deal with Microsoft, and Microsoft has an interest in dealing to continue sales. A sales ban has already taken effect in Germany based on the same patent-infringement claim, putting pressure on Microsoft to concede the point and cut Motorola in for a piece of the action. That would be an appropriate outcome, assuming Motorola’s claim is legitimate.
Of course, the other prominent reason why a ban of Xbox 360 sales in the States is unlikely is political. An ITC ruling in August would place Obama in an uncomfortable position two months before the election. Which political impulse would prevail, and to what end? Obama’s anti-business sentiment could break either way, against Microsoft’s “greed” or Motorola’s. When you add in the likely response from young voters whose sense of right and wrong is governed by whether they get what they want, the good money is on Obama breaking against a ban.
All told, the episode demonstrates intellectual property theory, highlighting an issue of fundamental rights for a large and youthful segment of consumers. In an age of rampant media piracy through file sharing, intellectual property is under withering assault from those who ignore the role of the mind in production and focus only on scarcity. So the argument goes: if I take your bike, you no longer have it; but copying your idea deprives you of nothing. Only, it does. The idea is a value conceived and rightly owned by its producer. The idea would not otherwise exist, and its producer is entitled to control its disposal.
In practice, Microsoft acknowledges this with every sale, accepting money in trade for products which consist of more than circuits and discs. What an Xbox or game played upon one is, at root, is an idea. The material absent any mind applied to it would be worthless.
This is a typically incorrect argument from a typically ignorant writer on IP law.
First, the US patent system does not grant injunctions as a default remedy in ordinary patent infringement cases! The eBay v. MercExchange case established that injunctive relief in patent cases is governed by the same rules as any other injunction; the plaintiff has to show that it is irreparably injured by the infringement, that monetary remedies are insufficient, that the balance of hardships between the plaintiff and defendant weighs in favor of an injunction, and that the public interest will not be harmed by an injunction. In layman’s terms, this usually limits injunctions to cases between direct competitors, where the infringer steals market share from the plaintiff. In the case of Motorola v. MS, Motorola doesn’t directly compete with MS’s XBox, doesn’t offer a substitute product, and would probably be unlikely to get an injunction against MS in District Court.
What complicates the issue is that we have a relatively obscure trade regulation meant to offer domestic companies protection against foreign infringers who often can’t be dragged into U.S. Courts. That law, the one Motorola is attempting to use, requires an injunction against importation of infringing products regardless of how trivial the patent is or how much the plaintiff is actually harmed by the infringement. That made sense when it was being used to restrict importation of infringing products from foreign companies who were judgment-proof in a U.S. court. However, it’s being badly abused now in the age of outsourcing to allow American tech companies to use the threat of a company-killing automatic injunction to beat up on other American companies with trivial patents. Microsoft plays the same game on the plaintiff side, which is why it would be entertaining to see it hoist with its own petard, but it’s not something we should applaud.
Finally, many of the patents here are trivial algorithms of either no importance or with no inventive value. In the late 90s and early 00s, the patent office went crazy issuing patents on trivial software advancements, written in such obfuscating language as to resist examiner searches for prior art. Most are invalid, but litigation is a big gamble. And when companies like Microsoft and Motorola have thousands, or tens of thousands, of these software patents, no other company has much ability to know whether they’re infringing. There’s little justice in enjoining companies for infringing these ridiculous patents. Patent litigation in this scenario isn’t preventing the theft of ideas, it’s granting monopolies to big companies that can best manipulate the patent office. And that’s an outcome no conservative should applaud.
Very well written. Thank you.
You are rejecting intellectual property as such. If indeed a patented tech is “trivial,” it need not be used in a commercial product. The fact that it is used is clear evidence that it is not trivial, but essential. Otherwise, why would it be used? In this particular case, could the Xbox 360 be the Xbox 360 without the contested tech? If it could, there would be no dispute.
Attacking intellectual property claims as monopolistic demonstrates a rejection of intellectual property as true property. All property claims are monopolistic in the sense that the owner controls the disposal of their property. What is mine is mine and not yours. That’s what owning property means.
If Motorola’s claim is spacious, it should not have held. As it stands, it did. And if their patented tech is being used without license, trivializing the infringement is a rejection of property as such. Just as there is no such thing as a trivial property line, there is no such thing as a trivial patent.
Right on the money, Mr. Hudson.
Brian? Fail. You are spouting the leftist playbook.
To be fair, intellectual property is a non-partisan issue. In fact, the Left has been at the forefront of overplaying the IP hand with circumventions of due process like SOPA/PIPA. It is the anarcho-capitalist utilitarians, having misappropriated the label “libertarian,” who argue most vehemently against intellectual property as such.
Leftist? I’m all for innovators being able to profit from their inventions, and I never argued for the abolition of intellectual property (for one thing, I’d be out of a job if that happened). What I’m against is acquisition of property by government pull–when it’s real property we call that eminent domain and protest the Kelo decision. The fact that the property at stake here is intellectual doesn’t mean that the goverrnment’s grant of it is indisputably correct.
Walter,
There are plenty of examples of patents which have made it past the US PTO without even being remotely valid by the standards and norms of the software engineering profession. Stuff that is so trivial that a recent college graduate could create a rough and ugly implementation with open source libraries gets in the tech trade news all of the time.
Frankly, your post also shows a very conspicuous lack of consideration about the differences between patents and real property. Real property does not and cannot ever leave the ownership of the lawful owner except as a result of death with no legal mechanism of conveyance, forfeiture under contract or criminal statute or sale.
Patents have none of those qualities they are, if you actually read the US Constitution (Article I, Section 8) allowed for the public purpose of promoting the sciences and useful arts. Our own founding fathers recognized intellectual property as being a state-created monopoly and worded Congress’ authority accordingly. The abomination of lifetime + X years copyright and ever-expanding patent (business methods, really?) are not what the founders intended.
1. I don’t reject IP generally. I have many clients who made real inventions and real contributions, and who deserve to profit from them.
2. “Trivial” doesn’t mean “not essential” here, it means “of little inventive value.” In some cases because they are plainly obvious minor improvements over the prior art (but obviousness challenges in court are very difficult). In some cases because they try to patent a basic design choice or a mathematical algorithm, and again while those are invalid, litigation is uncertain and very expensive.
3. The reason monopoly through improperly granted IP is bad is that it’s a government chosen monopoly. If the government took your real property and gave it to a big business that was more politically connected through eminent domain, you’d be outraged. The same thing happens when government, through overpatenting, takes material from the public domain and unjustly gives it to a company that didn’t create a real invention, but just claimed a common design choice.
4. “If Motorola’s claim is spacious, it should not have held. As it stands, it did.”
I would not expect a Tea Party leader to argue for the infallibility of even District Court judges, much less Administrative Law Judges appointed to the ITC. And much less still the European judge who actually ruled against Microsoft.
5. “Just as there is no such thing as a trivial property line, there is no such thing as a trivial patent.”
Try this one: http://www.google.com/patents/US6807560?printsec=claims&dq=internet+publishing&ei=FUrWT9mlFoeN0QHflPWcAw#v=onepage&q=internet%20publishing&f=false
U.S. Patent 6,807,560. Patented the method of displaying text on a non-white background to discourage printing. I’d love to see you defend how that wa new and useful as of its 2000 filing date.
Wow what a ‘patent’ that was!! I felt skeptical about claims of ‘trivial’ patents until I read that one. I can’t say, of course, how many patents are trivial, but that is proof that something completely stupid is patented.
That patent also has to be violated approximately a gazillion times a day. Non-white backgrounds are ubiquitous. But they don’t stop anyone from printing, so it was always a pointless exercise. I suppose it might stop a tech-hating grandpa from printing a webpage, but not my grandpa. He may be 90 but he knows his way around a computer!
A quick search of the patent office website for the word “capslock” shows the following.
A patent #5,856,785 issued in 1999:
“An apparatus and method for generating an audible indication during the time that a computer system has been toggled into a mode wherein all the letters of the alphabet a displayed in the upper case or the so-called capslock “ON” mode.”
…So the computer beeps if you have the capslock on? This is patentable?
This patent #6,801,190 issued in 2004 is seemingly for spelling-auto correct.
“A text entry system uses word-level analysis to automatically correct inaccuracies in user keystroke entries.”
Patent #7,177,902 is entitled “Remotely controlling a computer via simulated keyboard events” which is essentially logmein.com which has been operating for years. rlogin essentially goes back to the late 70s and people have been doing this for years.
The patent system is abused. It is badly abused by big companies with money to spend on lawyers to keep out innovators and competition by patenting absurdly obvious next-steps. Some of which have already been around for thirty years.
Finally, many of the patents here are trivial algorithms of either no importance or with no inventive value. In the late 90s and early 00s, the patent office went crazy issuing patents on trivial software advancements, written in such obfuscating language as to resist examiner searches for prior art. Most are invalid, but litigation is a big gamble…
Bingo.
The current state of Patents in the US is pretty pathetic when it comes to software patents. I’m a software engineer, and I’m pretty shocked at the number and scope of patents the PTO has granted that do not pass the laugh test. I hold a couple. Clearly the PTO examiners are not competent to evaluate software.
I’m not familiar enough with the mechanical or chemical engineering fields to say whether patents granted in those fields are equally problematic, but the field I am an expert in is terrible, so I can only assume Patent Law has become another joke, like so many parts of our legal system these days.
Sort of like journalism – if the media always gets the facts wrong for the stories you personally know something about, why trust them on the stories you’re unfamiliar with?
We need serious reform. I would start by requiring patent applications to be published and available for peer/competitor review for a period of at least a year prior to the PTO ruling on the application, with competitors allowed to challenge the novelty or scope of an application. The PTO at the very least needs some help reviewing these things.
Would you have a similar requirement for claims to physical property? Would you allow “peer/competitor review” of your claim to your house or your car?
Property claims are not subject to peer approval. That would undermine the entire concept of property. Your peer/competitor is predictably going to say you don’t own what you claim to. Their judgment will be based on their economic interest, not your objective claim.
The only relevant consideration in a property claim is whether the owner created or obtained by trade that which is contested. In the case of software, the question is whether the patent-holder created or purchased the rights to the software. You obviously can’t settle that kind of question by asking a competitor.
The problem with technology patents today and software patents in particular is that the ideas which they attempt to patent have germinated across many platforms, schools, and frameworks such that they are not unique or solely the invention of the person applying for the patent.
If you’ll take in that lecture by Professor Mossoff, linked in the piece, you will find that he addresses that point. The complexity of property claims is not unique to intellectual property, and not an argument against property as such. The fundamental questions is whether a new value has been created. If it has, it belongs to the individual who created it. If separate values belonging to others were used in the process without license, that is an infringement. Sorting that out is one of the rightful roles of government. Merely tossing our arms up and shrugging off the concept of property because it is sometimes complicated is not an acceptable option.
Mr. Hudson, I think you miss the point here. Some sort of review IS necessary to establish a patent as valid. The exact form of such review is open to debate, but clearly, there is need for some major reform.
The problem to which JMH refers is well known. I think the seriousness of it is inarguable.
Here’s a minor case in point from my own experience. I am aware of a person in my field who is making a good living as a consultant based on his “expertise” in a this specialized field. A good part of his credentials is his portfolio of patents. I mean, hey, if this guy has a dozen patents to his name, he must know what he’s doing, right?
Wrong. I’ve read his patents. They are garbage. They are vague restatements of prior art, completely lacking in originality or the specificity which is needed to make them actionable. They are at best, fluff, and at worst, fraud. (I suspect fraud, but I can’t prove it.)
Why were they awarded?
Our patent office is overwhelmed, understaffed, and lacks experts in many, many fields. Simply put, patent examiners are asked to review applications in areas where they do not have the necessary expertise to judge of the validity of the patent. It’s like asking someone who speaks only English to grade essays written in Spanish.
We need major change. Better budgets, yes. More qualified people, yes. But more than that, we need a way to challenge patents other than going to court and suing. That only puts highly technical questions in front of judges who are even LESS qualified than the original patent examiners.
What we’re doing ain’t workin’!
To the extent the goal of such reform is the protection of individual rights, including the right to own that which you produce, improvements in the process are indeed proper. At issue in this thread seems to be the underlying notion of intellectual property, whether an idea can be owned. Indeed, if a new value is created, no matter how small or intangible, it rightfully belongs to the person who created it. Having experts involved in the process who can accurately discern a new value from a preexisting one is well and good. However, the process must remain objective, and allowing peers to lord over their competitors property rights would be an obvious conflict of interest.
I think there are two questions here:
1. Are IP rights property rights?
2. Are all patents valid?
The answer to the second question is a resounding NO. Many software patents, especially, are bogus. They should never have been issued (like my “consultant’s” dozen or so). I would hazard a guess that there are tens of thousands of patents in force which should NOT be. They do not meet the criteria.
This state of affairs does not protect individual property rights. Rather, it weakens them by clouding the issue and raising doubt about the integrity of the process.
As to the first question, I hold that they ARE. Unambiguously. Yet JMT and Mike make valid points – there ARE differences between physical property rights and intellectual property rights. While they are the same rights in principle, their very different natures makes the job of protecting those rights look very different in some important ways. We don’t need a Property Office to safeguard my ownership of my computer. The ideas that make that computer possible cannot be secured by physical means.
Inherent in this is the need to establish that something patentable exists. As you put it, has new value been created? When patents are issued where no new value has been created (which is OFTEN the case these days), the entire system is weakened.
There is a parallel in the physical realm. We buy title insurance because there is a need to establish legal ownership of a piece of property. That is, the unique value of that property has to be legally established. There is a legal process for this, and there are legal avenues for challenging the validity of a title. It’s rarely used, because the system works reasonably well in the first place. While we do sometimes hear of a title being challenged, most challenges are not successful, because most titles are sound.
What would be the result in the real estate market if bogus titles flooded the market, given out by an understaffed, overworked, and unqualified Title Office?
We’d have chaos!
This is the situation that now exists with IP. Anybody can cobble together a few bits of jargon and flim-flam and get a patent issued. This is an untenable situation.
So, what’s the answer?
The answer is NOT the anarcho-libertarian “solution” of basically doing away with IP rights.
RATHER, the correct solution is to STRENGTHEN IP rights by reducing the number of bogus patents that are issued.
When the deed to my property is known to be secure and reliable, my property has more value. When deeds are flimsy and often spurious, my property has LESS value. My property rights are degraded.
The best safeguard for property rights is the rule of law, which is best served by a strong and competent patent system. This MUST include mechanisms for reducing the number of bad patents, both before they are issued and after.
Another software engineer here, CTO of the business I work for. Agree with the others who are telling you that the USPTO issued/allowed asinine patents that are little more than obvious improvements to existing processes etc and aren’t really the unique items that patents were intended to protect. e.g. a “buy now” button is not a crazy/wild unique omigosh that’s brilliant idea. It’s little more than an obvious use of a button, but the USPTO was stupid enough to let someone “patent” the idiot thing, causing problems for all. If you argue that this is actual intellectual property, you’re a flaming moron.
The USPTO by being unaware of tech and 20 years behind the curve essentially laid the groundwork for the patent equivalent of cybersquatting: “hey, nobody has patented a button that says specifically _visit my website_, so now we can ‘patent’ this button use, and anyone using a button to link with owes us big $$$.”
In short, you may know things about the law, but so what, you obviously don’t know jack about technology.
You have to be very careful with claims of obviousness.
There are very many ideas that are extremely simple and obvious to anyone who hears them explained. Have you ever thought of something “Hey, it’s so simple, why didn’t I think of it first?”. Wheel is extremely simple idea. You need a simple glance to understand how it works. It is as obvious as it can be. There are zillion examples in nature of it’s use (simple rock rolling downhill, pottery wheel, etc) could be enough to come up with the idea, yet there are many cultures who didn’t figure it out.
randomengineer – Regarding the particular example of yours – do you know of anyone using it before patent was filed (aka “prior art”)? If yes, you can break the patent, you don’t even need to go to court to do it. If no-one ever used that button idea before, why do you think you are entitled to using it now, after you had learned of it from someone else? If idea is silly and not useful, then why do you care? Just don’t use it yourself.
Patents are not cheap, they are time consuming and expensive to write and expensive to maintain, so most people don’t do it just to impress others.
My point is not legal or technical, but moral. Producers own the values which they produce. The detail of how a proper government protects the right to property is another matter altogether. As stated in a previous comment, to the extent more expertise can be objectively integrated into the patent process to the end of securing individual rights, it is indeed proper. But what I’m reading from many of these comments is a rejection of the root moral concept that a producer owns that which he produces, including his ideas, no matter how small. I don’t read a desire for better patents, but a conceptional rejection of patents in many cases.
Walter
As the holder of a valid nontrivial patent I can assure you that I am well aware of the ramifications, both legal and moral. In my patent there is described a truly novel and nonobvious item.
From what I can tell there seems to be a problem with the notion of obviousness, which is essentially described as obvious to a fellow practioner of the art form, not the guy on the street, not a judge, and not you. What is obvious to my profession is that a link is a link is a link and whether you link via an image of a word or via an image, it’s still just a link. People were linking to “pay” pages via images long before the amazon patent, and a button on a web site is an image, period.
There are millions of examples of software written by tens of thousands of us starting in the 80′s where buttons and/or images were used in applications. It wouldn’t have occured to me in 1986 to apply for a patent on a software slide bar that controlled lamp brightness because a slide bar to control brightness is not a novel and nonobvious use of a slide bar, even if I were the first person to use a slide bar for this (and I may well have been.) This however is what the amazon attorneys were able to portray, that since the advent of the modern software era, a button image being selected was somehow a magical once in a lifetime thing that deserved patent protection. A slide bar being used to control a linear state whether lamp brightness or amp volume is the reason for using a slide bar, so using it to control *this* item vs *that* item is not and has never been patentable merely because it’s being used to control something relatively obscure rather than ubiquitous. In other words, using a slide bar to control lamp brightness is neither nonobvious nor radically unique and would never be viewed as thus by my fellow practioners.
And we haven’t even begun to cover triviality, which is intended to protect an original idea from some yoyo who makes a minor incremental change and wants to claim it as utterly original. A pay now button is not only TRIVIAL, but breathtakingly so.
Patents were invented to protect inventors of novel, nonobvious and unique commercial gadgets, process improvements and so on that were worth commercial development, and rightfully so. That which you are talking about is a disservice to *real* patent holders (like me) because these are items etc that should have never been awarded patent status in the first place and were so awarded by idiots who were simply incapable of ascertaining what the state of the art was and what was obvious and not. If anything your take in things is further proof that the patent system where it regards software/IP is even more sadly lacking than it had been, and it was abysmal.
What is truly needed is a random jurying system utilising people like me who are periodically selected to review applications (peer review style) where we determine as a group (unknown to each other) whether some improvement is truly mindblowing unique or trivial and obvious — TO US — as practioners of the art in question. Obviously fricking buttons are the stuff of complicated rocket science to the lawyers and bureaucrats who work for the USPTO.
Views such as yours are doing me no favours because your view lets the yoyo who adds an incremental addition to my design claim that s/he is doing something nontrivial, nonobvious, unique, etc. when this is nowhere near the truth. You’re not qualified to have an opinion and you’re in over your head.
What you are seeing here is people trying to bring the moral discussion back to a discussion of how the morality intersects with the legal system as it actually is. They are pointing out to you that there are a number of severe holes in your argument because you frequently mix the moral and legal aspects of this case and many any others in ways that are less instructive. Case in point, discussing this particular case outside of the larger context of the ongoing Microsoft-Apple-Google-Samsung patent wars where negotiations over royalties are barely even a blip on the radar of the companies rather than using the patent system as a strategic barrier to entry altogether in a given market. Rather than be used to reward innovation, they are using the patent system to delay competitors’ entry into the market through government force. Apple, for example, could have given a damn about the royalties Samsung owed them in Australia; they’re a rounding error on the iPad’s profitability. What mattered was making sure that the iPad had a head start on the Galaxy line of tablets in legally entering the market.
As a practitioner myself, I frequently see non-practitioners go nuts over the latest fads in our field. For example, they don’t know that Java and .NET are really just modern, hyper advanced versions of p-code virtual machines which were first prototyped in the late 60s, early 70s. Another example? Web services which are the hot thing for inter-app communication in business apps are basically just a CGI script (again, early 90s tech) that is designed for direct app-to-app communication, not delivering web content to users. We know this and laugh at it, but non-practitioners actually sit there listening to the marketers and think “wow, this ‘changes everything’” when it’s just an evolutionary advancement. It’d be hilarious, were it not for the fact that Google and Oracle just fought a Godzilla vs Mecha Godzilla battle with the fate of the #2 smartphone platform’s very existence in its current state hanging in the balance. Android being open source, there were few ways if any to amicably resolve that with patent licensing.
Most of the patent abuses happen in our field because the threshold for entry is low as dirt compared to other fields. You have a good idea, it probably will only cost you a few thousand bucks in hardware and software to prototype. The same ease of entry that let’s people get started also makes it easy for others to come along and build a better mouse trap. People being lazy, they don’t like to double down and iterate on their design to one up that competitor. Software already enjoys the very comprehensive protection of copyright law (which gives Microsoft far more power over Windows than Ford or GM have over how people customize or offer add-ons for their products). It doesn’t need much of the patent system’s protection on top of that. In fact, the very reason why the generic PC industry exists is because the federal courts took a laissez faire attitude toward Compaq’s first clone when IBM sued them. You can thank leniency on IP law for the proliferation of affordable, quality PCs.
This particular conversation is not about some small inventor being attacked by a giant corporation. We have 2 huge companies, with unlimited resources to examine and contest every single patent that is being used in a lawsuit. Microsoft is free to countersue Motorola, it also has many other remedies, like requesting patent reexamination, etc. The fact that Motorola’s patents held speaks for themselves.
BTW, current patent system does allow for things you talking about. You can challenge patent application, you can request patent re-examination and do other things without going to court, before and after patent has been granted.
Yes, at a cost of thousands for the barest of reviews, and many more thousands for a somewhat more extensive review, and very little, if any, opportunity to demonstrate why the patent should not have been awarded.
Fine if you are Microsoft or Motorola, but for an individual who is just trying to right a wrong (my “consultant”) or for a small businessman trying to protect his legitimate interests, it’s prohibitively expensive, and woefully inadequate.
A point often neglected by the Walter Hudsons of this world. We are all supposed to be equal before the law, aren’t we? Yet here are two cases from both sides of the pond that seem to suggest that in practice the one with the biggest bucks is(to use a Marxist commonplace) “more equal than the other”. What else can you say when the RIAA(I think that’s its name) can get a “victory” in court for alleged illegal downloads simply because they have loads of DO$H to hire armies of lwyers while she’s living on her own in a trailer and has at the bottom end of the earnings scale? Or of a case in my country(the UK) which commanded a lot of adverse comment in the computer press where a Lodon legal firm was sending demands for payment on behalf of a German client who claimed that they had illegally downloaded some software? Because of the detail involved, which would hace challenged even the best of IT specialists, the courts in Britain eventually threw these claims out as so much bullying.
I don’t think an “idea” per se can be either patented or copyrighted. Both patent and copyright are properly applied to the specific application of an idea. For who is to be believed that he first had the idea other than by who first produces a tangible expression of it? Further, are we then to outlaw the continued application of an idea to other endeavours, products and processes simply because someone else first applied said idea to some generic process or simple product? Is Mason Jar to receive a royalty on the sales of every other glass container with a screw-on lid?
This is the major problem with so-called intellectual property and the ridiculous race to patent trivial modifications of existing products. The “patent” for “depressing a mechanical and/or electronic finger-sensitive device for the purposes of transferring process directives and/or other inputs to a computing device”, ie hitting a key on a keyboard, comes to mind.
The original intent of patent and copyright was to foster innovation by granting a temporary and limited monopoly on the commercial exploitation of new products and artistic works. This to encourage individuals to undertake adding new products and works to the commonweal. Without such incentive, the the labour and expense of doing so was thought likely to discourage most to the detriment of all.
Instead, the whole structure has been subverted to the point where real innovation is stiffled. The race is on to seek rent rather than innovate.
Geeks on parade! To sum up:poo.
I’ll also point out, when you’ve got sixty-seven million units in the field, and injunction is not going to do very much. That horse has done left the barn a long time ago.