Tragedy of the anti-commons

February 10, 2009 8:27 AM

Tragedy of the anti-commons is the opposite of tragedy of the commons - it's when too many owners create grid-lock, nothing can get accomplished. It exists everywhere from copyright law, tech patents, music industry, airport runway expansion, medicine, etc.. it is pervasive across all aspects of modern capitalist societies. The concept was coined by Professor Michael Heller who published a book in 2008 called The Gridlock Economy: How Too Much Ownership Wrecks Markets, Stops Innovation, and Costs Lives. In an excellent Authors@Google video, Michael Heller explains what it is and how it undermines capitalism, in particular over the past 30 years with increased privatization.
posted by stbalbach (55 comments total)

One of the clearest examples Heller gives in the video is that of Germany and the Rhine. During the Roman Empire and early Middle Ages, the Rhine was the economic superhighway of northern Europe bringing goods and people from the Atlantic to Switzerland and beyond. Starting around 1200, Germany fragmented into many small fiefdoms and castles were built all along the Rhine each charging a toll to pass. To get from one end to the other would cross dozens of tolls. It was no longer cost effective to use the Rhine and it was largely idle of ship traffic until the 1700s. There were too many owners wanting a piece of the pie, so few used it.
posted by stbalbach at 8:29 AM on February 10, 2009 [4 favorites]

I can't wait to see the death of capitalism.
posted by zouhair at 8:33 AM on February 10, 2009 [4 favorites]

Yeah, it'll go really smoothly.
posted by regicide is good for you at 8:53 AM on February 10, 2009 [5 favorites]

Fascinating; thanks.
posted by lunit at 9:13 AM on February 10, 2009

I don't have all that much positive to say about the patent system, but the (still somewhat flawed) cross-licensing forced in that context by blocking patents is a reasonably good way to deal with this problem. I'm fairly certain that we're a ways off from balancing the tragedy of the commons with the tragedy of the anticommons in that situation to best encourage technological advances, but it is a start.
posted by Inspector.Gadget at 9:38 AM on February 10, 2009

Yes.
posted by DU at 9:40 AM on February 10, 2009

Thanks!

Copyrights need three big changes : (1) shortening to 14 years when held by the creators, with max 7 years held by publishers, and an absolute 7 year limit for work for hire, (2) made unenforceable if source code isn't published, and (3) cap damages based upon gains from infringing. I think people can basically handle copyrights not older than 7 years (or 14 years if held by creators who won't have bureaucrats).

Patents needs more radical changes. You can achieve lots by limiting scope and improving documentation & prior art processes, but I don't feel this fixes the fundamental problem. I'd suggest some more market driven solution where formally a patent only granted you exclusivity if you produce but not otherwise.

Explanation : You apply for & receive a patent on A & B. So the patent office makes your patents & documentation publicly available. You then file an "activation claim" when you bring your product Y to market. An activation claim states the percentage value a,b,c,etc. of Y that A, B, C, etc. are worth. Anyone may license your patent A for percentage a of the market value of Y, even without your permission. Also, your patents would not let you sue over any product on market before your activation claim was filed, indeed such suites are likely considered frivolous. You also have face some minimum waiting period, say 6 months, before you may file an activation claim. So if your competitors can implement & market some product Z using A in under 6 months, then Z will never be subject to your patent A.

Such a market based system alleviates many problems inherent in patent examination, especially patent trolls. Yet, the patent still has considerable value, even if your not selling any product using your patent, others might sell such a product, and thus might want to buy your patent to keep out their competitors.
posted by jeffburdges at 9:43 AM on February 10, 2009 [2 favorites]

Scott Kieff wrote a paper responding to Rai and Eisenberg, including the Heller & Eisenberg paper linked under medicine in the FPP. For a shorter, less technical paper defending patents rights against the anti-commons theory, see On Coordinating Transactions in Intellectual Property. Note that this is limited to patent rights. The other kinds of privatization are another matter, even other areas of IP, such as copyright.

Self-link Disclaimer: I work with Scott at the Hoover Institution Project on Commercializing Innovation.
posted by jedicus at 9:45 AM on February 10, 2009 [1 favorite]

(2) made unenforceable if source code isn't published

Most copyrighted things do not use source code.
posted by Inspector.Gadget at 9:47 AM on February 10, 2009 [3 favorites]

This makes me think of journals and library access, where too many owners essentially limit the education that students can receive by pricing their wares in an insane way. Even worse, most of the material contained within was paid for at least in part by public moneys.
posted by klangklangston at 9:55 AM on February 10, 2009

jeffburdges: Your patent proposal has lots of problems.

First, many patents cover inventions that are not turned into products immediately, so your proposal limits patent protection to 'factory-ready' products. That would effectively remove patent protection from many industries, particularly those that are cyclical, have long production lead times, or have substantial regulatory approval processes.

Second, it is extremely difficult to estimate the value added to a product by the invention covered by a particular patent. Often there is no comparable product (e.g., a drug for which there is no alternative therapy) or the invention has enough new elements that it can't really be compared to the alternatives.

Third, how do you verify that the patentee isn't overstating the value add? This would lead to fact-intensive litigation, which is very expensive.

Fourth, this is at heart a mandatory licensing scheme. There are lots of problems with mandatory licensing as opposed to property rights (i.e. exclusive rights). For one, mandatory licensing greatly reduces the incentive to design around patents, which reduces the number of new, creative solutions to problems.

Fifth, non-practicing entities are not inherently problematic. Have you ever rented a car? You've just used a non-practicing entity. The rental company doesn't use the cars itself, instead it provides the very valuable service of renting cars to others. Sure, you could just buy a car in every city you wanted to drive in, or always drive everywhere instead of flying, but that would be prohibitively expensive. Instead, you happily pay a convenience fee for access to a rental. Non-practicing entities (such as universities) often work the same way.

The problem with patent trolls is not their non-practicing status. The problem is that their patents are usually junk but they can extract licensing fees or settlements from parties that can't or won't pay to invalidate the patent. The answer to that problem is to eliminate the presumption of validity for patents. The invalidation rate for litigated and reexamined patents is high enough that the presumption of validity no longer makes sense. Without that presumption, both filing rates and the value of patents to trolls will go down.
posted by jedicus at 10:00 AM on February 10, 2009 [6 favorites]

There's a sci-fi story from awhile back where a lobbyist explains to a Senator or something that public domain must be restored because, by the time of the story, computer programs are necessary to, for example, create melodies that don't match or too closely resemble melodies in previously-copyrighted songs. It was a good read; pity I can't find it or I'd link it.
posted by Pope Guilty at 10:01 AM on February 10, 2009 [1 favorite]

Pope Guilty: Melancholy Elephants, by Spider Robinson.
posted by jedicus at 10:05 AM on February 10, 2009 [15 favorites]

A great talk. The Rhine example was just one of many illuminating examples.

Nit: At about 8 min in, he says Denver is the only airport built since 1975, but what about Austin-Bergstrom?
posted by iconjack at 10:08 AM on February 10, 2009

Damn, that was fast jedicus. Thanks!
posted by Pope Guilty at 10:09 AM on February 10, 2009

cf. Georgism, specifically The Corruption of Economics.

It's Gaffney's argument that the monopolists basically bought and paid for a new school of economic thought -- neoclassical economics -- to displace and then marginalize the burgeoning Georgist movement of the Progressive Era. Factoid: the University of Chicago was founded by Rockefeller.

Georgists call the first time you see the difference between rentierism and honest capitalism "seeing the cat". 'course, this can get lazy by sloppily defining anything apparently deleterious as "rentierism", but it works for me.
posted by troy at 10:18 AM on February 10, 2009 [2 favorites]

Also, the Rhine example isn't a particularly good one. The tolls were not really private if they were owned by a government. The toll operators that weren't sanctioned by a government were little more than bandits and pirates. (The Rhine toll operators are where the term 'robber baron' originates).

Also, the Rhine is a unique, rival good. That is, there's only one navigable waterway along that route and there's no practical way to build another one alongside it. This is not the case with intellectual property. Any given creative work or technical invention is unique, but the purpose they serve are not. If I write a song about two people falling in love, I haven't got a monopoly on love songs. Similarly, if I patent a cure for a disease, nothing stops someone else from developing a different cure for the same disease.

In any event, if you want to take the really long view, eventually the railroad, automobile, and airplane were invented, which would allow circumvention of the Rhine bandits. Not an optimal approach, but it shows that even unique, rival goods do not necessarily result in true, permanent monopolies or anticommons.
posted by jedicus at 10:21 AM on February 10, 2009 [2 favorites]

Oh, another example of a new airport. XNA (Northwest Arkansas Regional) opened in 1998. American Airlines is the major carrier, but it has connecting service from most of the other majors.
posted by jedicus at 10:26 AM on February 10, 2009

previously :P

also i linked it here before, but the smart growth manifesto recognises that 'ownership' is a myth! cf.
posted by kliuless at 10:33 AM on February 10, 2009 [1 favorite]

Copyrights need three big changes : (1) shortening to 14 years when held by the creators, with max 7 years held by publishers, and an absolute 7 year limit for work for hire, (2) made unenforceable if source code isn't published, and (3) cap damages based upon gains from infringing. I think people can basically handle copyrights not older than 7 years (or 14 years if held by creators who won't have bureaucrats).

I think different copyright types require different lengths. For a novelist, it might take a long time for a book to become famous, or an authors later work might make their previous stuff more popular. On the other hand, what’s the point in making news paper articles copyrighted forever? Or even 7 years.

Fourth, this is at heart a mandatory licensing scheme. There are lots of problems with mandatory licensing as opposed to property rights (i.e. exclusive rights). For one, mandatory licensing greatly reduces the incentive to design around patents, which reduces the number of new, creative solutions to problems.

You mean it doesn’t force people to waste their time and resources? How is that a problem.

Our patent system is a total joke.
posted by delmoi at 10:46 AM on February 10, 2009 [1 favorite]

The line "tragedy of the anticommons" in and of itself feels a bit like an attempt to make another tipping-point-esque catchphrase, well, happen.

Eagerly awaiting a MeFi level discussion about copyright law.
posted by Phire at 11:06 AM on February 10, 2009

delmoi Designing around patents is not a waste of time and resources. As for mandatory patent licensing, if you introduce it, you can kiss goodbye to most applied research in universities and research institutes. Just like "trolls", those are "non-practicing entities" who get income from licensing, not making stuff. Same for individual independent inventors (although they arguably only file a small minority of the valuable patents).

Now, full disclosure: I'm a patent attorney and a former patent examiner. That may make me biased, but it also means that I know better than most what the defects and advantages of the patent system are. I'm also a bit of an amateur historian, so that I'm also aware of the previous ups and downs of the patent system.

My proposals would be:

a) Fully fund the patent offices. Across the world, governments see them as profit centers, which is seriously wrong: for each dollar not spent properly examining a patent application, society may have to pay ten in unjustified monopolies and litigation. Also, granted patents do not block nearly as much as pending patents. More must be invested in accelerating examination and reducing pendency, while increasing the quality of the examination process.
b) Consider ways of making patent information more transparent: it is bloody absurd that, in the age of Google(R), patent documents still follow a template dictated by nineteenth century printing technology. Patents should be made more easy to search and understand to the layman. The whole point of patents is that of offering an incentive not just to invent, but to also disclose your invention. It is pointless if it then becomes the proverbial needle in the haystack.
c) I don't quite agree with jedicus on presumption of validity. If the inventor has gone through all the hoops of examination, it is reasonable for him to expect some presumption of validity. However, courts should also be aware that patent examiners, like anybody else, can also screw up.

Will this eliminate all trouble. Certainly not. But law, just like engineering, is a matter of compromise. The patent system as it is has evolved through a long process of trial and (frequent) error. Wholesale change will not result in a better situation, believe me...
posted by Skeptic at 11:12 AM on February 10, 2009 [5 favorites]

You mean it doesn’t force people to waste their time and resources? How is that a problem.

Are you familiar with the saying 'better is the enemy of good enough?' Consider a drug; it's a good one, but has some undesirable side effects. Under a mandatory licensing scheme, the result is that various companies will offer the same drug and compete on price. Under a property scheme, competitors are forced to develop alternative drugs, some or all of which may turn out to be more effective or have fewer side effects.

R&D is not wasted time and resources. Having more options is better. Sometimes because individual options are better but sometimes just because it helps to avoid monoculture.
posted by jedicus at 11:17 AM on February 10, 2009

gov't patent buyouts is an idea worth exploring; expanding the (creative) commons...

New institutions and new kinds of institutions--perhaps even some that have been tried before, like the French government's purchase and placing in the public domain of the first photographic patents in the early nineteenth century (see Kremer (1998))--may well be necessary to achieve the fourfold objectives of (a) price equal to marginal cost, (b) entrepreneurial energy, (c) accelerating the cumulative process of research, and (d) providing appropriate financial incentives for research and development. The work of Harvard economist Michael Kremer (1998, 2000), both with respect to the possibility of public purchase of patents at auction and of shifting some public research and development funding from effort-oriented to result-oriented processes (that is, holding contests for private companies to develop vaccines instead of funding research directly), is especially intriguing in its attempts to develop institutions that have all the advantages of market competition, natural monopoly, and public provision.

cf. advance market commitments & x prizes
posted by kliuless at 11:19 AM on February 10, 2009 [1 favorite]

I just want to add that Northwest Arkansas Regional is a beautiful, friendly airport, maybe the nicest I've seen, and leave you all to your fancy money talk.
posted by Navelgazer at 11:25 AM on February 10, 2009 [1 favorite]

jedicus Under a mandatory licensing scheme, I don't think there would be any drugs left in the pipeline anyway:

In average, out of each 200 new interesting substances, only one makes it through all three clinical testing phases. The cost of clinical testing runs into the billions. With mandatory licensing, all parties would be caught in a classical prisoner's dilemma: invest in the clinical testing of new substances, or just wait until somebody else has gone through the whole hassle and expense and weeded out the 199 bad ones, and then ask for a license for the remaining one. I mean, I don't work in the pharma field, but I do see how that would work out...
posted by Skeptic at 11:26 AM on February 10, 2009

How about one of these:

Patents and copyrights become non-transferable (they die with the company or person)

Corporations are not allowed to hold patents or copyrights, only individuals

Patents and copyrights require paying a maintenance fee

Patents and copyrights are invalid if the product is no longer produced or sold.

Patents and copyrights are infinitely renewable but the fees compound by 10% per year.

Patents and copyrights are held by the government and leased to companies and individuals

Any patented or copyright work that generates revenue is taxed at 5% of revenue.

All patent and copyright notices are required to include an expected expiry date

ad infinitum...

posted by blue_beetle at 11:43 AM on February 10, 2009 [1 favorite]

Patents and copyrights become non-transferable (they die with the company or person)

That's really a nonstarter. What about bankruptcy, mergers and acquisitions, wills, etc?

Corporations are not allowed to hold patents or copyrights, only individuals

If only individuals can own patents and copyrights then profiting from them necessarily means exposing the individual to all of the financial risks of the venture. That is, it ignores one of the main reasons for having businesses in the first place.

Patents and copyrights require paying a maintenance fee

Patents do require maintenance fees, which add up to tens of thousands of dollars over the life of the patent, per country. The total lifetime fee expenditure for having a patent in every jurisdiction in the world is in the millions.
Copyrights do not have a fee or other formalities, per the Berne Convention. At least in the US, however, if you want to sue someone for copyright infringement you must register the work with the Copyright Office, which charges a nominal fee.

Patents and copyrights are invalid if the product is no longer produced or sold.

See above for how this wouldn't work in many industries (business cycles, seasonal goods, regulatory issues, bankruptcies, etc, to say nothing of the vagaries of cultural taste in the case of copyright).

Patents and copyrights are infinitely renewable but the fees compound by 10% per year.

Something along these lines is actually not a bad idea. In Europe, for example, patent maintenance fees are assessed yearly. It turns out that the percentage of patents that go abandoned increases steadily as the patents age. In other words, forcing companies to continually assess the value of their IP is a good way to get them to let go of IP that isn't valuable anymore.

Patents and copyrights are held by the government and leased to companies and individuals

This is a mandatory licensing scheme and won't work for reasons discussed above.

Any patented or copyright work that generates revenue is taxed at 5% of revenue.

So, an extra tax on revenues generated from patents or copyrights? It would be difficult to determine what revenue is 'from' a patent or copyright. Imagine a large company that uses one small bit of in-house accounting software, which is naturally copyrighted, but absolutely no other patents or copyrights. Nonetheless, that bit of accounting is crucial to the day-to-day operations of the business. How much of the revenue is due to that software?
Similarly, imagine a business that sells a product with many features, only one of which is patented. Do you tax all of the revenue from that product? Just a percentage based on the value add? These are all fact-intensive questions that would be costly to implement and regulate.

All patent and copyright notices are required to include an expected expiry date

It isn't that hard to look up the expiration date of a given patent or copyright based on the information given in the notice (i.e., the copyright date or the patent number). There is a small push, though, to require the Patent Office to calculate and make available the expiration date for patents. Currently that's left up to interested parties.

ad infinitum...

As you can see, it's actually quite a bit harder to come up with good solutions to these problems than you might think.
posted by jedicus at 11:58 AM on February 10, 2009

delmoi Designing around patents is not a waste of time and resources. As for mandatory patent licensing, if you introduce it, you can kiss goodbye to most applied research in universities and research institutes.

It’s a waste of resources practically by definition I mean, and I have to spend $100,000 implementing it. But oops, I need a high-speed data bus to go along with that and I need to spend another $20,000 coming up with a new data bus which may not be any better then anything on the market but I have to do it just to get around some patent because I’m not part of a cross-licensing agreement. That is a complete waste of time and resources! If I had an idea for a faster, better data bus then that would be a great use of resources. But if it works just as well or maybe even worse, then it adds no value to the world.

That doesn’t mean patents are bad, after all, that first bus designer should get paid. But the idea that the extra work it creates is somehow a good thing is a little ridiculous.

As far as applied research goes, well, if they can’t survive in a sensible patent environment then who cares? Universities can do pure research or get grants or whatever. Or try to make money from the mandatory licensing scheme. Just like we shouldn’t mandate DRM on every computer to help the record industry, we can’t wire up the patent system to help specific groups.

Are you familiar with the saying 'better is the enemy of good enough?' Consider a drug; it's a good one, but has some undesirable side effects. Under a mandatory licensing scheme, the result is that various companies will offer the same drug and compete on price. Under a property scheme, competitors are forced to develop alternative drugs, some or all of which may turn out to be more effective or have fewer side effects.

Right, but all of those companies would be paying the drug designer for the patent rights, and it would still be worthwhile for other people to develop new drugs and if they’re better they’ll get that revenue. In fact, companies would only sell the best drug, rather than the situation we have now where lots of drugs which are not the best get sold because it’s all the drug companies have and they market to lazy doctors who don’t keep up with the journals.
posted by delmoi at 12:00 PM on February 10, 2009 [2 favorites]

Here's the House and Senate versions of the Patent Reform Act of 2007, which is mentioned around the 36-minute mark. The House version has passed already. Looks like the Senate version just got out of committee a few weeks ago, so it should be on deck sometime soon.
posted by antonymous at 12:06 PM on February 10, 2009 [1 favorite]

What has always interested me in the biotech field is that you regularly hear about someone out there that has a pattent on something that was published in the literature ages ago. Inovative idea, sure, but basic cell culture stuff that everyone has known for ever?

If I tied to get a patent for "consumptionof water as a prophylactic treatment for dehydration" I would expect them to point at me and laugh. If I somehow got the patent (say a clerical error) I'd imagine that the cheapest lawyer in the yellow pages could devour me in court. That I've seen the giants of big pharma just caving on and FTO issue taht was common lab practice in the early 80's astounds me.
posted by Kid Charlemagne at 12:09 PM on February 10, 2009 [1 favorite]

As for mandatory patent licensing, if you introduce it, you can kiss goodbye to most applied research in universities and research institutes.

Didn't universities do this before they used patents to make money from what they researched?

And why would forcing them to license what they research mean they couldn't make money from it? As it stands, it looks like we're heading for a world in which schools go out and research what they can in order to forbid anyone from making use of it without paying them. Which is counter to the primary purpose of an educational facility, is it not?
posted by JHarris at 12:23 PM on February 10, 2009

# Patents and copyrights become non-transferable (they die with the company or person)

That's not really a problem, given the length of the patent term, and I'm not convinced the desire to hit the marginal cases overwhelms the need to protect inventors' reliance interests. I'm with you on copyrights though.

Corporations are not allowed to hold patents or copyrights, only individuals

Thus ends the primary source of capital for high-tech inventions. Unless you're seriously prepare to argue that an exclusive contract the length of the patent term is significantly different than the monopoly effects of the patent instrument.

Patents and copyrights are invalid if the product is no longer produced or sold.

Usually not an obstacle. If someone produces a device that's better than yours and uses some of your technology, you typically enter into a license agreement that charges next to nothing so they can use their better technology without infringing your patent and you can practice an improved version of your invention that borrows from theirs.

Patents and copyrights are held by the government and leased to companies and individuals

This is a bad idea and approaches totalitarianism. If you're going to call something property, you need to have a compelling justification for the state to seize it.

Any patented or copyright work that generates revenue is taxed at 5% of revenue.

Guess who ultimately bears that cost.
posted by Inspector.Gadget at 12:42 PM on February 10, 2009 [1 favorite]

Copyrights need three big changes : (1) shortening to 14 years when held by the creators, with max 7 years held by publishers, and an absolute 7 year limit for work for hire

where did you get these numbers? they seem awfully arbitrary, and on top of that I can't imagine why someone should hold the copyright to their published work for less than their lifetime. it sounds like you're thinking exclusively of software code, which is odd in and of itself since so much of patent work involves no publishing or copyright.
posted by shmegegge at 12:45 PM on February 10, 2009

Actually, the ability to profit from applied research through patenting appears to have lead to an increase in basic research since the Bayh-Dole Act was passed in 1980.

According to NSF, in 1980, basic research comprised 66.6% of academic R&D endeavors while applied research and development were 33.4% of the total. In 2001, the percent of academic R&D expenditures devoted to basic research increased to 74.1% while applied research and development declined to 25.9% of the total. Source [pdf]

So the point is not that university patenting allows the work to be done. University researchers will work for academic kudos, or a bigger lab, or tenure. But you can't license academic kudos or tenure to a venture capitalist. You need a transferable property right.

Thus, the point is that patenting allows the effective commercialization of the invention, which is the best and fastest way to bring it to the market as a real product. Well-defined property rights allow deals to be structured between researchers, facilitators (i.e., universities), manufacturers, marketers, and regulatory agencies.

Patents are like bright points of light that signal "look here, I have found something and there is money to be made from it!" This beacon effect draws together all of the parties necessary to bring a product or service to the market. The better-defined the patent right is, the easier it is for the terms of the deal to be worked out.
posted by jedicus at 12:47 PM on February 10, 2009

"where did you get these numbers? they seem awfully arbitrary, and on top of that I can't imagine why someone should hold the copyright to their published work for less than their lifetime. it sounds like you're thinking exclusively of software code, which is odd in and of itself since so much of patent work involves no publishing or copyright."

It looks like a halving of the Copyright Act of 1790.
posted by klangklangston at 1:18 PM on February 10, 2009

On the other hand, what’s the point in making news paper articles copyrighted forever? Or even 7 years.

Every once in a while, newspaper and magazine articles become movies. Ex.: Saturday Night Fever, Pushing Tin, The Fast & the Furious. I see your point, but I'm not completely comfortable with the authors of those articles getting no rights to the stories built on their articles.
posted by dhartung at 3:27 PM on February 10, 2009

In fact, companies would only sell the best drug, rather than the situation we have now where lots of drugs which are not the best get sold because it’s all the drug companies have and they market to lazy doctors who don’t keep up with the journals.

I'm no pharmacist, but I really must point out that things are a bit more nuanced than this. It is useful to have multiple drugs for various conditions because some patients may respond better to Drug A vs. Drug B, and there are likely different side effects, contraindications, and drug interactions to consider as well.

Also sometimes drugs just "poop out" after awhile. I've had this happen with various antidepressants. If I didn't have other types to switch to when a given sort stopped working, I wouldn't be able to function.
posted by marble at 3:47 PM on February 10, 2009 [2 favorites]

Arbitrarily shortening copyright for people still actively using and marketing their work is straight out unfair.

If anything, copyright should be set at initial 7 years. Then a company or individual can pay a nominal fee for another 7 year term and repeat ad infinitum while the they can still afford the upkeep on the copyright maintenance. Make an online copyright database where you can search for titles. If it's not in there the copyright on the work is up in 7 years.

The tragedy isn't that stuff is locked up in copyright (I mean that is a tragedy but not what we should be concentrating on) but that stuff where the copyright holder has become defunct is going to be lost to history.

7 year terms will make the casual archivist's job so much easier. There are already 20 year old games, history, being lost to the world simply because we don't have the means to legally reproduce them and keep them safe and we certainly can't go and buy these games off the shelf anymore. These aren't going to survive life + the number of years since Steamboat Willie and it's going to be an even bigger tragedy when we have a massive 20 year gap in the records of a medium.
posted by Talez at 3:54 PM on February 10, 2009

"If anything, copyright should be set at initial 7 years. Then a company or individual can pay a nominal fee for another 7 year term and repeat ad infinitum while the they can still afford the upkeep on the copyright maintenance. Make an online copyright database where you can search for titles. If it's not in there the copyright on the work is up in 7 years."

Uh, no, thanks. Things should drop into public domain, and ideally in less time than things take now. Otherwise, you're basically legislating a class of property that only the rich can hold in perpetuity.
posted by klangklangston at 4:00 PM on February 10, 2009

If the rich are going to arbitrarily hold a piece of work hostage in perpetuity and they can afford it more power to them. I could buy up all the land in a city and hold it just to be a dipshit if I was rich enough. That's no reason to stop selling land.

The current system isn't working precisely because the rich are extending their monopoly in perpetuity. A reform that involves upkeep would see more property pass into the public domain and force the value of the copyright to be balanced against the upkeep rather than giving copyright holders a never ending free pass to hold content hostage.
posted by Talez at 4:16 PM on February 10, 2009 [1 favorite]

I can't wait to see the death of capitalism.
posted by zouhair

Yeah, it'll go really smoothly.
posted by regicide is good for you


I laughed.
posted by Ndwright at 4:58 PM on February 10, 2009

>As for mandatory patent licensing, if you introduce it, you can kiss goodbye to most applied research in universities and research institutes.

Didn't universities do this before they used patents to make money from what they researched?

Universities (in the US anyway) used to get a lot more government funding for research than they do now. Most universities have started relying heavily on "technology transfer" to fund research, since the government is no longer interested in funding it.

I'm not sure exactly what "mandatory licensing" would entail (how do you determine costs, etc), but cutting off patents as a source of funding would drastically reduce the ability of universities to do research.

It's extremely unlikely the government funding is going to ever come back, and certainly not in the current economic climate.
posted by wildcrdj at 5:11 PM on February 10, 2009

"If the rich are going to arbitrarily hold a piece of work hostage in perpetuity and they can afford it more power to them. I could buy up all the land in a city and hold it just to be a dipshit if I was rich enough. That's no reason to stop selling land."

First off, no, there'd be a fairly decent outcry and you'd find that your land would be seized for public good under eminent domain.

Second off, yeah, it actually is a pretty good reason to stop selling land, or to authorize the seizure of land by the public. It's a pretty big issue in Latin American politics. But I doubt you want to have that argument.

Third, intellectual property returns to the public domain due in large part to a recognition that creation cannot happen without the access to prior creative works—there's a debt to the public that is fulfilled by the relinquishment of rights. And that's especially salient regarding corporations like Disney or, say, DC and Marvel, where they have essentially grabbed public domain works and brought them under their aegis. Giving them those rights in perpetuity is a bad idea. Not only does it rob the public of their property, but it also discourages innovation—especially if we grant the idea that mandatory licensing is undesirable because it discourages innovation, perpetual ability to draw money from an intellectual property likewise discourages the creation of new intellectual properties.
posted by klangklangston at 5:22 PM on February 10, 2009

Fifth, non-practicing entities are not inherently problematic. Have you ever rented a car? You've just used a non-practicing entity. The rental company doesn't use the cars itself, instead it provides the very valuable service of renting cars to others. Sure, you could just buy a car in every city you wanted to drive in, or always drive everywhere instead of flying, but that would be prohibitively expensive. Instead, you happily pay a convenience fee for access to a rental.

WTF? Seriously. Did someone patent "a method of providing transportation from airports" recently? I'm asking, because that's what the patent system has devolved into.
posted by ChurchHatesTucker at 8:16 PM on February 10, 2009

Things should drop into public domain, and ideally in less time than things take now. Otherwise, you're basically legislating a class of property that only the rich can hold in perpetuity.

I think you miss his point - anyone who can scrape together the $25 fee and a ballpoint pen can hold that little piece of IP in perpetuity. That's better than what we have now because A) Big corporation X won't fight it tooth and nail every inch of the way. B) Author who cares can pretty much keep his work out of public domain for as long as it's worth bothering. C) You won't have to guess whether something is public domain or not. There will be a big list of what is copyright and what isn't.

I would add that there ought to be a requirement that you supply a copy in a current common form for archival purposes. That will, at least, keep it from turning into dust in the mean time.

If corporation X (Oh, hell, let's just say Disney) wants to keep a little piece of IP (Steamboat Willie) copyright for 500 years past anyone caring, well, OK. At least they wouldn't be forcing hundreds of little short stories and such from 60 years ago to evaporate from history.
posted by Kid Charlemagne at 9:08 PM on February 10, 2009 [1 favorite]

"If corporation X (Oh, hell, let's just say Disney) wants to keep a little piece of IP (Steamboat Willie) copyright for 500 years past anyone caring, well, OK. At least they wouldn't be forcing hundreds of little short stories and such from 60 years ago to evaporate from history."

Frankly, that's a smaller risk to the public good than having public property privatized in perpetuity. And since I'm arguing against a perpetual scheme, and arguing for one with definite limits that are quite a bit shorter than those of an author's life, your fears seem pretty absurd.
posted by klangklangston at 9:33 PM on February 10, 2009

jedicus: "Pope Guilty: Melancholy Elephants, by Spider Robinson."

Creepily, this reminds me of a story with a nearly identical premise written (discovered?) by David Brin a decade later.
posted by Rhaomi at 12:11 AM on February 11, 2009 [1 favorite]

Would you like me to find you a list of authors who are not in the public domain, but who haven't been reprinted in 40 years or so Klangklangston? Once the substrate dissolves the data is pretty much lost.

I understand what you're arguing for, but there are powerful forces who are going to keep pushing for an extension every time the old extension is grinding to a halt (If the fake HTML wouldn't mess things up this would get the "gesture: tapping two fingers on the inner elbow" tag). For better or worse they have roughly a zillion dollars to plow into their addiction and as a result they're the ones who've been, and are likely going to continue to be, calling the shots.
posted by Kid Charlemagne at 2:45 AM on February 11, 2009

Did someone patent "a method of providing transportation from airports" recently?

No, not to my knowledge. My point was that non-practicing entity business models occur in areas besides patent licensing and that the business model can often be a great convenience that people are happy to pay for. Basically all rental businesses, for example, are NPEs: They license the use of a product that they themselves do not use or produce.
posted by jedicus at 7:15 AM on February 11, 2009

"Would you like me to find you a list of authors who are not in the public domain, but who haven't been reprinted in 40 years or so Klangklangston? Once the substrate dissolves the data is pretty much lost."

If you can find me a list of those authors whose work is also not available in any library, and whose works have not been reproduced without their consent. I wager that it's a much smaller list.

And again, I'd argue for a shorter copyright term in general, and it's not at all like perpetual renewal is the only other way to conceive a copyright regime apart from our current one.
posted by klangklangston at 7:39 AM on February 11, 2009

delmoi : I was partially building your book case into "14 years when held by the creators, with max 7 years held by publishers, and an absolute 7 year limit for work for hire". Sure, you can grant the creators more time if they never made money. But no you can't change length based upon domain because lobbyists will then reverse all your good intentions (work for hire copyrighted forever, books expiring after two years, etc.).


jedicus & Skeptic : I was giving vague guidelines for a patent system that would serve the original purpose of protecting the capitol involved in brining products to market. Patents were never intended to protect research & development costs. To answer jedicus' objections :

1 & 5 : No, patents are still useful for non-factory ready products because patents grant the potential for an exclusive monopoly. So, even if you never sell anything, anyone else who sell the product will want the patent to prevent competition. Yes, sure, a corrupt regulatory agency will slow down your approval process ensuring that your competitors with bribe money complete their regulatory process first. To solve this, any regulatory framework for new products needs some notion of "regulatory activation claim", meaning all products entering the approval process after yours will be subject to your patents.

2 & 3 : No, I expect the patent holder will grossly manipulate the value add percentages, even refilling new activation claims immediately before their competitor brings some new products onto the market. I'm not asking that "facts" are involved, outside of the fact that the product used the patent, merely that patent licensees are not too grossly overvalued relative to the products market.

You can ask if patents should cover research & development too? For this, you really must consider alternative patent frameworks :

National patents : Work supported by government grants may receive national patents. A "national patent treaty" would ensure that other nations grant your nation exclusive production rights, assuming no monopoly exists within your nations borders (in particular, national patents are ignored if other private patents grant an effective monopoly).

Public interest patents : A patent could have explicit previsions for non-exclusive license payments to a non-profit organization for future development work on related technology.

In both proposals, the alternative patent framework specifically targets the concerns of research & development over capital, creating "direct to generic" drugs for example, but such frameworks operate separately from private patents.


shmegegge : No, copyright must not last even 1 lifetime. Any child who grows up with your work should intrinsically have reproduction rights when they become adults. I like 14 because 14 + 7 = 21. I feel work for hire and exclusive lessening should only have 14/2 = 7 years of protection to reduce exploitation of creators.
posted by jeffburdges at 10:43 AM on February 11, 2009

shmegegge : No, copyright must not last even 1 lifetime. Any child who grows up with your work should intrinsically have reproduction rights when they become adults.

this is a really bizarre idea. did you just come up with this now? how would you define a "child who grows up with your work?" how long would they and the work have had to have existed in order to count as having "grown up with it?" (let me guess: either 7 or 14 years.) why should a baby born today be allowed to reproduce something I have published today 21 years from now? Why should a child born 14 years ago be allowed to reproduce (for sale, no less!) something I have published today 7 years from now?

this all seems incredibly arbitrary, and that's only when it doesn't seem based on numerology. Isn't copyright supposed to be based on some measure of justice for creators and the public, rather than an arbitrary fondness for numerical tricks?
posted by shmegegge at 12:34 PM on February 11, 2009

jeffburdges No, patents are still useful for non-factory ready products because patents grant the potential for an exclusive monopoly.

What monopoly? In your proposal you say that the patent holder would be obliged to grant licences on predetermined terms. There would be no monopoly, potential or otherwise. Worse, you make the patent unenforceable for inventions that are brought to market by competitors in under 6 months. That may not be the case in the pharma industry, but it can well happen in others.

Your "national patent" idea is grossly protectionistic and would be economically disastrous. As for your "public interest patent", such arrangements are nothing new, if not very popular.

Apart from all that, please excuse me, but to somebody having some experience in patents, your arguments and proposals have a distinctly Time-Cube-ish flavour to them.
posted by Skeptic at 1:52 PM on February 11, 2009

If I only can make bajillions from my idea instead of skazillions of bazillions, I'm not sure I will lift a finger to develop my idea. It's those skazillions that REALLY motivate me.
posted by Mental Wimp at 2:02 PM on February 11, 2009