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May 08, 2005
Copyrights and Patents

I had an interesting debate with a very good friend who is very much at the heart of the legislative process. Those who know us both well will certainly read between the lines here.

He called to ask me a specific question about how he could politically play something that had some conflicts amongst the interested parties in the Patent reform area.

I've been thinking a lot about Patent reform of late and our conversation help me crystallize some vague thoughts I've had. It had been bugging me as I have a well developed theory and understanding of Copyright and its digital transformation and I felt like I should also have the same in Patent, but that the issues had eluded me a bit. That had as much or more to do with the fact that I had to eat, sleep, and breathe Copyright during the EMusic days and Patent has only come in here and there in my career. Granted I have far deeper understanding than the average layman, but I pride myself on having well developed opinions on intellectual property, so firming up my opinion on Patent was a nice expurgation of my lack of well completed thoughts.

What struck me most is that there is a common thread that runs through my support of a middle way on Copyright and Patent. I'm willing to accept that they both can serve real value in a modern society. What I'm unhappy about is the moral rights aspect of both. Inherent in the Copyright debate is a desire to extend a copyright into the realm of Patent - to control a package of rights larger than just the identical expression of ones work.

Also seemingly inherent in the lone inventor's argument in support of Patent is that they should have the rights to withhold the ability to practice an idea to someone else, even when the someone else has clean hands in practicing that idea - they thought it up independently but slightly later, often had no contact with the "original" inventor, and then out executed the Patent holder.

The constitutional history of both of these government granted monopolies is that they are granted with a limited set of privileges associated with them in return for the disclosure or publication of the intellectual property in question. Any law or public policy that doesn't further the spread of those ideas while returning renumeration to the privileged seems to be outside the scope of the grant. Note two things here: one is that I use privilege and not right as only people have rights and that the government grants a monopoly to your intellectual property right and not someone else's intellectual property right is a privilege and the second is that this helps explain my utter distaste for Copyright term extension after creation as it doesn't related back to creating incentive to create.

Posted by hoffmang at 11:36 PM

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