The Wild West of Intellectual Property

Back in the bad old days, bandits armed with six-shooters would rob stagecoaches at gunpoint to get their money and valuables. This was a reasonably effective way to earn a living, since law enforcement was nonexistent and the stages often carried a reasonable amount of loot. Of course, the bad guys couldn't mix with polite company, but that never bothered them much.

We've come a long way since then. Now, bandits armed with lawyers and obscure intellectual property extort small online businesses for "licensing fees" under the threat of crushingly expensive lawsuits. This is a reasonable way to get money, since the burden is on the defendant to have the patent or copyright claim invalidated, and small businesses are unlikely to have the resources to fight back. Of course, the bad guys won't ever be mistaken for true innovators, but that doesn't seem to bother them much.

I started thinking about this today, after listening to a Morning Edition segment about the Acacia streaming media lawsuits . SCO seems to be using a similar strategy with its Linux lawsuits (though to call SCO's actions a "strategy" confers upon them an internal coherency and logic which I, for one, cannot fathom).

Somehow, under (mostly) the best of intentions, we have come to a place where nearly anything can be someone else's intellectual property, and where the rights which go along with owning the intellectual property are stronger than ever. To back to the Wild West analogy, it is as though people were being allowed to stake claims with the land office, but the land office wasn't checking to see if someone else had already claimed the same acreage.

A hundred years ago, there were some significant hurdles to obtaining a patent. To begin with, the inventor had to have actually built the invention: a design on paper wasn't good enough. The patent application had to include a physical model of the invention: I have a patent model my grandfather built back in the 1940's--it makes a nifty bric-a-brac holder now, but back then, it was a crucial part of the process.

Today, all kinds of crazy things can be patented, with "business methods" being the most egregious. The requirement for a working model went out the window a long time ago, along with the requirement that the patent be for a significant advance in the state of the art. Now it seems all you need to get a patent is anywhere from $10,000 to $200,000 and the chutzpah to argue that your idea is new and unique.

Similar things have been happening in copyright law. It used to be that obtaining a copyright required filing with the copyright office and paying a fee. A copyright notice was attached to the copyrighted work, and if the copyright wasn't renewed periodically, it expired. The maximum length of a copyright was a few decades. If something hadn't been filed at the copyright office, it was in the public domain.

Now, any creative work is automatically copyrighted from the moment it is made. Because no notice or filing is required, it can be difficult or impossible to know when a work was first created, if it is under copyright, or who the author or rightsholder might be. Authors and artists are better off without having to register their work (a little detail which can be too easy to overlook), but as in the SCO case, without a central registry of copyrighted material it can be hard to know who really owns a disputed work.

Meanwhile, the actual rights being asserted over intellectual property have quietly expanded. For example, copyright claims have been asserted against books which do little more than borrow a general plot and setting from another work of fiction. While such a novel might be derivative in the literary sense, copyright law was only meant to protect against the wholesale duplication of someone else's efforts.

The net result of all this is that the business environment around intellectual property is a minefield of potential lawsuits, and the smaller companies are the most vulnerable since they often lack the resources to fight a lengthy court battle. It is literally impossible to remain current with the patents which might cover a given area of technology (and the problem of "submarine patents " makes this situation worse).

The original intent of patent and copyright laws was to encourage artists and inventors by giving them a limited legal monopoly on their works. The public benefits by having inventions and creative works which would not otherwise exist, and future artists and inventors benefit by being able to build upon earlier work.

Somehow, we've wound up with a patent system which encourages gamesmanship rather than invention; and a copyright system which keeps work out of the public domain for so long as to be useless to the next generation of artists. I don't have all the answers, but I have some ideas which would help:

1. Copyrights Need to Be Renewed or Lost. The length of an "automatic" copyright (one which isn't filed with the copyright office) should be much shorter, say five years. This gives the creator enough time to determine if the work is marketable, and to file (and pay for) a copyright if it is. This removes a lot of the problem of determining whether a work is in the public domain, and who owns it. In addition, the imposition of a small filing fee will encourage publishers to release their older and commercially non-viable material into the public domain.

2. Patent Applications Must Have a Working Implementation At The Time of Filing. This is a simple concept, really, which would solve a lot of problems. If you can't make it work, you can't file for a patent. Ideas are easy, but the really hard part is translating an idea into something that does what you wanted it to do. Furthermore, you can't file a patent to establish precedence before making the invention work, since the application is void if it didn't work at the time of filing.

3. Patent Applications Become Public At The Time of Filing. Many companies will scream bloody murder over this, claiming that it would give away valuable competitive information, but that's what trade secret law is for. If you don't want it public, you shouldn't file for a patent. By releasing information on pending patents, you give others the chance to demonstrate prior art to the patent examiner, which could keep a lot of bad patents out of the system.

4. Tighten The Definition of "Derivative Work." Under copyright law, a rightsholder can prevent others from creating "derivative works," loosely defined as a new work created from the old. The definition of a "derivative work" can be very broad, and includes instances where the supposed original work isn't at all apparent. In reality, the interests of the rightsholders can be entirely protected by narrowing this definition to mean instances where the original work is substantially copied, or translated into a new medium. This change would free up artists to draw upon earlier works, as long as they didn't try to just copy it.