A talk by Paul Graham at Google about whether software patents are evil. One concern he has is whether in a world where patents are legal firms should patent things. Like Graham I would have a hard time advising anyone not to take advantage of the law as it exists - especially since if you don't take out defensive patents you are a potential victim. The talk is hardly a ringing endorsement of patents as a matter of public policy, though. First, he provides some insight into what sort of companies file patent lawsuits (as opposed to filing patents)

A company that sues competitors for patent infringement is like a a defender who has been beaten so thoroughly that he turns to plead with the referee. You don't do that if you can still reach the ball, even if you genuinely believe you've been fouled. So a company threatening patent suits is a company in trouble.

When we were working on Viaweb, a bigger company in the e-commerce business was granted a patent on online ordering, or something like that. I got a call from a VP there asking if we'd like to license it. I replied that I thought the patent was completely bogus, and would never hold up in court. "Ok," he replied. "So, are you guys hiring?"

The main case against patents is that they don't work terribly well in encouraging innovation - the reason for having them in the first place. Graham apparently agrees

In the software business I know from experience whether patents encourage or discourage innovation, and the answer is the type that people who like to argue about public policy least like to hear: they don't affect innovation much, one way or the other. Most innovation in the software business happens in startups, and startups should simply ignore other companies' patents. At least, that's what we advise, and we bet money on that advice.

The media are reporting

High Court judge Peter Smith rejected a copyright-infringement claim by Michael Baigent and Richard Leigh, authors of "The Holy Blood and the Holy Grail," who claimed that Brown's blockbuster "appropriated the architecture" of their 1982 book. In the United States, the book is titled, "Holy Blood, Holy Grail."

...

Smith said the plaintiffs had based their copying claim on a "selective number of facts and ideas artificially taken out of (the book) for the purpose of the litigation."

But perhaps the real purpose of the lawsuit was this?

Baigent and Leigh['s] ... 24-year-old book is selling 7,000 copies a week in Britain, compared with a few hundred before the case began. Baigent's new book, "The Jesus Papers: Exposing the Greatest Cover-Up in History," has an initial print run of 150,000 copies in the United States.

From Merriam-Webster

theft is the act of stealing; specifically: the felonious taking and removing of personal property with intent to deprive the rightful owner of it.

Does making a copy of my idea "deprive" me of it? If we grant a monopoly over the "idea" of Mickey Mouse, or over soap the only right you have is the exclusive right to do business with your customers. So the only thing I can "steal" from you are your customers. But your customers might not be so eager to be your property.

It seems like we can post one of these stories every day. CNN and other media are reporting

Online DVD rental company Netflix Inc. sued rival Blockbuster Inc. for patent infringement Tuesday, asking a federal judge in Northern California to shut down Blockbuster's 18-month-old online rental service and award Netflix damages, according to a copy of the filing.

...

The first patent, granted in 2003, covers the method by which Netflix customers select and receive a certain number of movies at a time, and return them for more titles.

The second patent, issued Tuesday, "covers a method for subscription-based online rental that allows subscribers to keep the DVDs they rent for as long as they wish without incurring any late fees, to obtain new DVDs without incurring additional charges and to prioritize and reprioritize their own personal dynamic queue -- of DVDs to be rented," the lawsuit said.

Maybe the geniuses responsible for the current law can explain how this "promote[s] the progress of science and useful arts?"

There is an article in the Washington Post about Tivo's lawsuit against EchoStar. Apparently

TiVo is suing EchoStar, the parent of the Dish satellite TV service, claiming it stole TiVo's technology that allows users to digitally record one show while watching another.

Read that again. Obviously they didn't invent the idea of recording one show while watching another - VCRs were always able to do that. Obviously to anyone who had ever programmed a computer, the idea of doing it digitally is completely trivial - it is a matter of getting the software/hardware combination to work fast enough. So maybe EchoStar some stole Tivo's hard work in getting things to work right? Apparently not

EchoStar attorney Harold McElhinny has been telling the Texas jury that EchoStar invented a DVR that uses technology different from that of TiVo. But it is an uphill battle, Clark said, in part because of the legal rule known as the "doctrine of equivalents."

The rule protects patent-holders from those who would use slightly different technology in order to build a device with substantially the same functionality as a product that already has been patented. The rule could be particularly relevant in this case because TiVo introduced DVRs to the public and its name has become synonymous with the technology.

So what was it that Tivo did to deserve a monopoly? Apparently they were first to market, and had the misfortune to have a sufficiently bad business model that they need a government bailout.

No, Klinger was trying to get a section 8. Section 108 is the part of U.S. Copyright law that

Among other things, ... provides limited exceptions for libraries and archives to make copies in specified instances for preservation, replacement and patron access.

Needless to say the committee that is reexamining the "exceptions and limitations applicable to libraries and archives" has such experts as Troy Dow, Vice President of Government Relations, The Walt Disney Company. (hattip: Slashdot)

From DRM Watch we find

The South Korean P2P file-sharing service Soribada revealed more details of its plans to convert to a paid service after losing a legal appeal against the Korean music industry last November. In an agreement with the Korea Music Producers' Association (KMPA), Soribada will charge users KRW 500 (US $0.51) for DRM-protected music tracks and KRW 700 ($0.72) for non-DRM-protected tracks. Soribada, one of several Korean P2P networks in discussions with KMPA, will use acoustic fingerprinting technology to control usage of some files on the network.

DRM Watch then reaches the conclusion that this means the seller expects a 40% piracy rate. Ed Felten provides a clear explanation of why this conclusion is silly.

From Christine MacLeod's book Inventing the Industrial Revolution : The English Patent System, 1660-1800

...the [English] crown, desperate for new sources of patronage and revenue in the 1630's, was able to exploit [loopholes]. Industrial corporations were created or transformed to operate patents that conferred monopoly powers, at the price of an annual rent or pro rata payment to crown. Major items of consumption - salt, soap, starch, coal, for example - rose dramatically in price as monopolists sought to recoup the rents and premiums demanded by the government and to extract high profits while their political luck held. The practicioners of some trades were barred from exercising their legitimate occupation except on the payment of fines, or they paid harsh penalties for refusal.

Sheldon Richman has a nice essay about how the WTO and developed nations are taxing developing nations for the use of ideas. He also provides a nice explanation of the "natural rights" perspective on intellectual property

But how does one own an idea once it leaves the confines of one's mind? At that point, other people have copies in their minds. To interfere with their use of their copies is to violate their freedom. If you've invented and patented the wheelbarrow and I see you using it as I pass your property, no theory of natural justice can insist that I have no right to use my own materials to make a copy of the wheelbarrow. Not only that: no theory of natural justice can insist that I have no right to sell to willing buyers the wheelbarrows I make. But patent law would stop me. Similarly, copyright law prevents me, even in the absence of contract, from nonfraudulently using as I see fit the books and recording media that I purchase.

On the mercantilism front, I will add my own experience. I was at a conference in Barcelona sponsored by the World Bank, and an economist who worked for one of the European intellectual property bureaucracies said intellectual property was good for developing nations - that it would lead to a great increase in innovation in the third world. I objected, and said that while economists disagreed about a lot of things having to do with intellectual property, the one thing we pretty much all agreed on was that forcing IP on developing countries couldn't possibly be good for them - no one who has studied or thought about the matter thinks the incentive effect in encouraging new innovation could possibly be strong enough to offset the enormous cost of having to pay the developed world for all existing ideas. There were quite a few economists at the conference - none objected to my statement.

The New York Times has an interesting article on a patent case making its way to the Supreme Court, LabCorp v. Metabolite Laboratories. The key issue is whether a patent can be granted for a procedure plumbing the relationship between between a substance in the body and a disease, or whether this is an unpatentable natural occurence.

As the article explains, court decisions have ruled against protecting natural laws and phenomena as well as abstract ideas; but in a 1981 case, Diamond v. Diehr, the Court decided for a patent on a rubber curing process using a chemical equation. An interesting aspect of the contest is that in the lower courts the plaintiff didn't raise the issue of patenting natural phenomena, instead arguing the case on other grounds, as the Burlington, N.C., firm doesn't wish to undermine its own patents, thereby hoisting itself by its own petard.

He who lives by the patent....