5 comments

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  Timon

  1 year ago

  There is a major confirmation bias in the thinking of (normally) clasical liberal thinkers that Epstein put unusually clearly in the podcast when he said something like, "You can't understand intellectual property unless you know about these 18th and 19th century liberals who describe why property is a good idea." He doesn't pause to wonder if it was in fact those very ideas (in Lawyerstan, DC, or just in his imagination) that were shoehorned into service in an area outside the environment where they evolved. That is to say, a Marxist historian will see class struggle in everything from amoebas to microprocessors, and there is a property vector in classical liberal ideology that can be just as totalizing. The problem - any problem - becomes "How do I apply my proven formula to this new thing?" rather than, "How does this new thing force me to revise what I though I knew?" And of course it is much easier to simply misunderstand or ignore key parts* of the new thing than to allow that your philosophy might not have perfectly anticipated centuries of chaotic human change.
  
  Despite all that, we should not concede these historical points. First of all, because these hoary traditions like tax-loophole patents, software patents, and business process patents are generally younger than Britney Spears's singing career. That has to be the beginning of any discussion of these things, especially when patent lawyers and trolls have the chutzpah to invoke the founding revolutionaries in reference to the mischief they have been making for a couple decades, and mainly in the last 8-10 years.
  
  
  * Epstein talks at length about open source licensing while betraying no knowledge of the subject, specifically the existence of the Apache, Mozilla/LGPL, and Berkeley Unix licenses, which account for enormous chunks of open source, and many of which are in fact in the public domain.
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  Tim Lee

  1 year ago

  Timon, that's an excellent point that I hadn't noticed from listening to his talk. He did seem to be oblivious to the fact that there are non-copyleft open source licenses. Which isn't a serious problem in and of itself, but does suggest that he's theorizing about things he doesn't understand very well.
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  Michael Masnick

  1 year ago

  Tim,
  
  One really really really minor point. You wrote:
  
  "The DMCA and software patents, of course, are two new laws that were introduced in the last decade or two over the loud objections of many of the people who would be most directly affected by them."
  
  It's worth pointing out that the change to include software patents wasn't a "new law" but a new interpretation of the law thanks to CAFC. In fact, if you listen to some patent attorneys talk about it, they'll claim that software has ALWAYS been patentable -- it was just that people didn't take advantage of it, which is a bit of revisionist history of course... but...
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  Tim Lee

  1 year ago

  Mike: quite right. But I think Epstein's policy point applies just as well: when the courts announce a dramatic re-interpretation of an existing statute--especially one that expands government power over the private sector--it deserves the same sort of skepticism as when Congress does the same thing.
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  Ike Elliott

  1 year ago

  Tim, this is an excellent post, and thanks for drawing attention to the topic. Thanks, also, for your comments on my blog regarding the question of whether software should be patentable.
  
  I have posted on the blog in response to your comments there, comparing software to music. Music is not patentable, of course, while software is patentable. Imagine if music were patentable, though. Would we have been deprived of many great musical works due to the temporary monopoly granted for certain musical forms? I fear that would have been the case, and it supports the idea that we should not have allowed software to be patentable.
  
  More on my blog at http://ikeelliott.typepad.com/telecosm/2007/12/...
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