"Balanced copyright" and feedback from real people (not just corporate "persons")

[llreader]

Ars Technica has an interesting (short, with good links) article on the new Anti-Counterfeiting Trade Agreement (ACTA).

Now, Public Knowledge is urging the public to give the US Trade Representative—which is negotiating ACTA—comments related to ACTA. USTR is taking comments currently for its "Special 301" process, a name of remarkable obscurity that could only exist in Washington. Special 301 happens every year, and it's a chance for companies to complain to the US government about other countries who aren't doing enough (in their view) to address issues like copyright violations and counterfeiting.

But the Special 301 process is open to everyone, and this year, US Trade Representative Ron Kirk explicitly asked for more public involvement. "With more robust, public participation in the review," said Kirk back in January, "we can better achieve the goal of identifying and addressing the most serious problems with protection and enforcement of IPRs."

They also give information on where to go to give feedback in general, but they don't have the direct link, which is here.

Anyone who wants to file a comments can go to regulations.gov, docket number USTR-2010-0003, and include the term "2010 Special 301 Review" in the "Type Comment and Upload File" field. You have one week left.

I am thinking about how to make an intelligent, respectful, and hopefully useful comment. Any ideas?

[llreader]

Typo in title fixed, thanks!

[llreader]

How's this?

As an American living overseas (and a voter), I think the US government should dedicate less resources to lobbying other countries to comply with our interpretation of copyright and more resources to ensuring that we comply with existing US copyright law in the United States, which includes fair use, public libraries, and limited copyright terms. Have your participants looked beyond issues of enforcement of their own intellectual property rights to address the issue of orphaned works? This is a growing and important problem, and apparently there are no provisions for moving these works to the public domain, perhaps with a compensatory fund if authors come forward at a later date. I hope that, in general, your "Special 301" process makes an extra effort to be aware of the rights of everyone involved in copyrights and their use, and not just focus on ways to extract more revenue from existing copyrights.

In a recent article in the Harvard Business Review (http://hbr.org/2010/01/wanted-a-firs...nnovation/ar/1), Edmund Phelps and Leo Tilman identify a stifling IP regime in the United States as an important factor that is smothering innovation and economic growth.

While some specific business interests may stand to profit from stricter and more onerous limits on the use of intellectual property, Americans as a whole would benefit from less punishment and more recognition of the rights of the consumer in US copyright law.

In the future, it would be much more helpful (and fair) if this process was transparent and open to public scrutiny, since this is an issue that affects every citizen of the United States.

Sincerely,

[Daithi]

You got some karma from me llreader, and your letter looks excellent. I just sent them a short letter stating the following:

Please make the ACTA provisions public, and easily accessible, so that we have something upon which to make informed recommendations. In regards to copyright in general I'd like to see the problem of books that are out of print with no way to contact an author addressed. These "orphaned" works should fall into the public domain, or have an author's royalty fund set up in which a percentage of revenue generated from orphaned works is applied for authors that come forward at a later date. These books should NOT be allowed to become inaccessible to the public as happens now.

[llreader]

Originally Posted by Daithi

You got some karma from me llreader, and your letter looks excellent. I just sent them a short letter stating the following:

Thanks! And those are good points, I am going to add some similar text to my letter (haven't sent it yet).

[Ben Thornton]

An excellent letter.

My only comment would be that:
"less resources" ... "more resources"
should be:
"fewer resources" ... "more resources"
or perhaps:
"less resource" ... "more resource"

i.e. "fewer" for a count noun and "less" for a continuous quantity.

Sorry .. I can't help it!

[llreader]

Thanks Ben! Too late, I already sent it. A couple of clumsy phrasings actually make it seem more like a real person (rather than a lobby-bot). Good point about "resources" and plural nouns.

[Ben Thornton]

Originally Posted by llreader

Thanks Ben! Too late, I already sent it. A couple of clumsy phrasings actually make it seem more like a real person (rather than a lobby-bot). Good point about "resources" and plural nouns.

I doubt that they'll notice - your letter was excellent.

I just can't help noticing fewer/less because it's one of my wife's pet peeves - one often hears shouts of "FEWER!" at the television in our house, as they (even the BBC nowadays) get it wrong again.

Of course, if enough people get it "wrong", it becomes right, because language evolves over time. Probably a sign of my old age

[llreader]

Originally Posted by Ben Thornton

I doubt that they'll notice - your letter was excellent.

I just can't help noticing fewer/less because it's one of my wife's pet peeves - one often hears shouts of "FEWER!" at the television in our house, as they (even the BBC nowadays) get it wrong again.

Of course, if enough people get it "wrong", it becomes right, because language evolves over time. Probably a sign of my old age

It is an interesting distinction. I think the way the term "resources" is often used is not as a plural noun, but as a large pool of fungible capacity, like a pudding. "We are going to put less of our pudding in the cup and more in the bowl". It doesn't make sense grammatically, but it does under the alternate conceptual paradigm. Like, say, "the waters of life", it/they are not treated as a collection of individual entities but as a homogeneous mass.

[zerospinboson]

I recently wrote an essay on the topic of stimulating innovation/creativity, and in it I (thanks to Julie Cohen's wonderful discussion in "Creativity and Culture in Copyright Theory", as well as Boldrin & Levine's Against Intellectual Monopoly and Boyle's The Public Domain, all freely available on the net) made an issue out of the assumption that innovation is (or even can) be stimulated by creating more property rights.
As Boldrin&Levine point out, IPRs are always created well after it has already been established that a market can be profitable, specifically when the main companies in the field have amassed enough clout to be able to work the system and create patent rights for them which means that innovation can only occur when there is adequate protection for inventors does not hold water at all for the riskiest cases of innovation, namely when setting up an entirely new industry. Yet for some reason, IPRs are deemed essential anyway. How is that?
It is in this light that I can only look upon ACTA with amazement, as it ignores entirely the question that should really be asked -- namely how one can stimulate innovation in a culture, something that is definitely not dependent solely on the existence of IP legislation -- in favor of discussing how broadly the proposed solution (IPRs) should be applied to the entirety of society and industry.
It is an amazing win for established industries that they can, without anyone doubting them, claim that IPRs are needed to 'insure' the survival of businesses, as otherwise "competitors will come in who will undercut us". Yet how, one wonders, do they imagine will those competitors be able to grasp the industry when even they have trouble innovating, etc. This last fact seems to imply directly that innovation, or even production, in that industry is hard, requires lots of up-front capital investment, etc. Which is a risk that new company would be taking just as much as the old company did, requiring lots of expertise collected in the same company, and so on.
ACTA is crap, but it's mostly crap because it seeks to protect incumbents against new entrants, rather than protecting companies who are innovating all the time. Protected industries are complacent ones. (Just look at AT&T before 1980s) As such, it's little more than rent-seeking by the Old World Order against the "threat" of Asia (that is, the threat of increased competition.), all to protect the incomes of the few white men on top, and all even though it's been shown time and time again that competition and innovation are hugely dependent on each other, and screwing with one strongly affects the other.

[Xenophon]

@zerospinboson: There are a number of historical instances of (commercially) important processes that were held as trade secrets, and then lost in wars or through accident. The first one that springs to mind is the "secret" of murex dye (that would the the "imperial purple" of the ancient world). The family that was the sole source of this dye was wiped out when the city they lived in (Tyre? I don't remember) was sacked in an invasion. And the formula for the dye went with them. They'd kept it secret to keep the price high and maintain their monopoly on the product.

An alternate example comes from my own past. I was the core of the R&D department of a small optimizing compiler company. For over a decade, all my work was held as a trade secret. It was 'published' only by being embodied in shipping products. I got to grumble at the PLDI conference proceedings each year as yet another thing I'd done with my team years earlier was published as 'new work' by someone else. When software patents arrived, I suddenly became able to publish! The discussion would go like this:
Me: "Can I publish this invention?"
Manager: "No."
Me: "Then do we plan to apply for a patent on it?"
Case A: Manager says yes, we apply for the patent, and publish via the patent office.
Case B: Manager says no.
Me: "Then we'd better publish quickly, before someone else patents it out from under us!"
Manager: "Start writing. Now!"

Note that both cases (after software patents) led to prompt disclosure of the invention, where all cases before software patents yielded a trade secret. And the trade secrets held up disclosure unless and until someone else made and published the same invention.

Some of our work was duplicated independently. Some is minor. And some publishable (and maybe even major) advances remain both unpublished and un-duplicated to this day -- 16 years later!

Xenophon
(whose NDAs expire in only a couple more years...)

[Xenophon]

I forgot to mention above that I'm not sure that I'd argue that IPR always leads to increased incentive to innovate. But it often seems to lead to increased incentive to disclose successful innovations.

Whether that effect is greater or less than the negative aspects is an argument for another day.

Xenophon

[Penforhire]

A company copying a product does not spend as much on the innovation or marketing aspect. That is why some IP protection (e.g. patents to license) is needed and reasonable.

I can reverse engineer a great deal out of my competitors' components (I'm an R&D manager in the field of passive components) if I choose to. That saves an enormous amount of R&D, even with the inevitable fine tuning (material choices, process control) and new equipment purchases.

Also, if the product fills some new niche in the market, the first company bringing it to market blazes a path in the hearts and minds of customers. "Oh, so THAT's what I can use it for." That first company spends more on getting mindshare for such a product. The second company can come along and sponge off that effort, sometimes by being an intentional 'second source,' gradually eroding the 100% market share of the first company with very little marketing investment. Now, to be fair, some products are so unique that there is a win-win relationship between those two companies, in that customers who are leery of unique single sourced items are more willing to try it if they have an alternate supplier available.

[zerospinboson]

Originally Posted by Xenophon

I forgot to mention above that I'm not sure that I'd argue that IPR always leads to increased incentive to innovate. But it often seems to lead to increased incentive to disclose successful innovations.

Whether that effect is greater or less than the negative aspects is an argument for another day.

Xenophon

But consider the other side. In new industries you often see a willingness on behalf of the first entrants to share ideas, in the hope that this will increase the rate of innovation for all. This surely is as worthwhile an incentive to disclose as patenting is, at least it is for those firms that did so (or to mutually NDA, but whatever. And in the software industry, eternity is not all that different from 17-20 year patents.

Originally Posted by Boldrin&Levine

That innovations do not, like Athena, spring out fully armored from the head of the innovator but are the products of painfully long processes of cumulative discovery to which hundreds, often thousands, of independent individuals contribute is well understood by actual innovators and repeated by an endless list of writers. The most recent discussion of this point we came across, in the business-related literature, is Berkun (2007),which contains plentiful, interesting examples and abundant reference to the many who argued this point before him, and us.

I imagine that one of the primary reasons you had to write that patent quickly was not because it was especially worthwhile, but because you otherwise ran the risk that another would patent it, and use it to stifle your competition.. This is not a worry in a patentless world, though.
Also, lots of companies choose not to patent their innovations specifically because they don't want to disclose, and just use NDAs. So in that case nothing is gained by offering a patent option that allows them sole ownership of the idea and all 'similar' implementations for 17-20 years down the road.
And the more successful an innovation, the more reason to try to reverse-engineer it. (Which would be allowed and doable, even if the actual implementation wasn't disclosed.)

In any case, I'm not really sure I care enough about a dye from the 12th century, and an innovation that apparently wasn't notable enough to be copied/reverse-engineered/whatevered yet to lock down the whole world over it by forcing every country to adopt the us's IP legislation.
The problem with your second assumption, however, is that this second line of argument is always 'put off for another day' by everyone, even though the answer to it is incredibly important if you're worried about the possibility for future companies to comfortably try out new ideas without worrying about whether someone else has patented it already.

What you have now is a whole slew of industries in which basically only those who can contribute significantly to the "shared patent pool" are allowed to compete. All others are denied the right. This is really a cartel by another name, and bad.

Originally Posted by Penforhire

I can reverse engineer a great deal out of my competitors' components (I'm an R&D manager in the field of passive components) if I choose to. That saves an enormous amount of R&D, even with the inevitable fine tuning (material choices, process control) and new equipment purchases.

Sure you can, but you're already part of the field. Do you really think that you would have been able to do so right out of high school? Without investing time and money in doing comparable R&D yourself, you wouldn't have had this experience. And in a patentless world, that other company would have been just as able to copy your thought-up innovations as you would be in copying theirs.


Edited. You can get the Against Intellectual Monopoly book here (free). The first chapter contains an interesting discussion of the history of the invention of the Steam Engine by Watt, and is par for the course.

[zerospinboson]

Originally Posted by Penforhire

Also, if the product fills some new niche in the market, the first company bringing it to market blazes a path in the hearts and minds of customers. "Oh, so THAT's what I can use it for." That first company spends more on getting mindshare for such a product.

But how many products are there, in the same industry, in the same decade, that manage to do fire up the consumer's imagination like this? It's of course possible, but it hardly seems realistic to assume that every first product in every new market will be that notable.
First mover advantage gives you months if not years to profit from your innovative product before another company will have reverse-engineered it and produced sufficient quantities of it to challenge your supply chain, and your name will still be the first to come to mind when anyone starts talking about the product, so that's an enormous amount of good-will (and a head start, which will probably give you time to develop the product further while the first copier is still playing catch-up) that you can leverage.