Comments on: The lawyers creating unnecessary intellectual property rents – again

By: Kevin Cox

Kevin Cox — Sat, 23 Aug 2008 22:07:13 +0000

The funny thing is that for many ideas excluding others by trying to fine them for using your idea is commercially the worst thing you can do. For an idea to sell you actually have to convince others that the idea will work. So the first thing you have to do is to ask others to copy it in their heads and believe in it and then act on it – which is exactly what patents are trying to stop. You now say to them. “Everytime you use this idea you have to pay me something for it – that is pay a fine” If the idea is any good people will do it anyway but will vary it in some way so their lawyers can argue the case for a long time and you will not get any money. More likely people will say – it is not worth the risk and I will not “buy” the idea. So if you have an idea the best way to sell it is to let anyone else use it and if you have a patent on an idea then you agree that others will not be charged if they use it.

I think this principle can be extended to other regulations. If you want to “sell” a regulation then you have to get others to embrace it and follow it. But the best way to do that may be not to punish people with fines if they disobey. But how do you stop people from breaking the regulation? Well you do it so that anyone who breaks the rule is punished by exclusion from the game. How does this work? Anyone who wants to indulge in some social or economic activity agrees that they will obey the rules. If they break the rules then they are not punished they are simply excluded from playing in the future – or perhaps for some period of time. This is the way we do it with imprisonment and with football. Why not do it for economic activities and in particular for white collar crime. For example you agree not to collude with others on prices. If you do and you are found out then you are stopped from selling or employment in areas on which you colluded with others and it is made public. We do it in a limited way with licenses, with credit checks, so why not extend to most government regulations.

We could even institute a yellow card, red card, approach to white collar crimes!

By: Kim Weatherall

Kim Weatherall — Mon, 18 Aug 2008 07:59:46 +0000

To answer Tel’s question: the surveyors/surveying firms who drew them in the first place. BUT that assumes that the license is worth something: I wonder if the Copyright Tribunal would consider a zero fee license? Or will the government think about re-working the system and working out what they should really have to pay for? Creating an exception based on the public benefit that comes from greater availability of this material? Much still to ponder on this one.

By: Tel

Tel — Sat, 16 Aug 2008 09:36:24 +0000

Who actually ends up with the royalties on these plans?

By: IPR Reform : Tree of Knowledge

IPR Reform : Tree of Knowledge — Wed, 13 Aug 2008 15:10:44 +0000

[...] up here’s Nick Gruen at Club Troppo: Our biggest mistakes often come when we’re most untroubled by our logic even when [...]

By: Bingo Bango Boingo

Bingo Bango Boingo — Wed, 13 Aug 2008 04:45:51 +0000

I object to being lumped in with High Court justices. They’ve been getting things wrong for over a century, whereas I always get things right. Please don’t talk about Teh Lawyers, talk about Teh Judges.

BBB

By: LawFont.com » CAL wins in the High Court: NSW Govt has no implied license to make and distribute copies of surveyors’ drawings [updated]

Wed, 13 Aug 2008 03:14:10 +0000

[...] Part 2 (but the Constitution!). Inchoate responds here.Nick Gruen has an AFR op-ed, which is re-produced on Club Troppo here – referring to Fitzgerald’s and Anderson’s (pre-High Court decision) article [...]

By: Gummo Trotsky

Gummo Trotsky — Tue, 12 Aug 2008 22:31:31 +0000

Timely article.

By: Legal Eagle

Legal Eagle — Tue, 12 Aug 2008 12:13:10 +0000

Tangible property is all about managing scarcity and enforcing exclusive possession (particularly re valuable resources such as land). Intellectual property is not scarce (in fact, an idea can be disseminated broadly in multiple copies everywhere) so legislation enforces scarcity by a monopoly regime. The idea of excluding others is intrinsic to property, and has been imported into intellectual property, but really we stifle productivity if we exclude others from using ideas too much. A free interchange of ideas is necessary for progress.

By: derrida derider

derrida derider — Tue, 12 Aug 2008 08:13:28 +0000

Ya know, you don’t have to be a full-blown French postmodernist to understand how a narrative can frame actions. The unfortunate narrative with “Intellectual Property” arises from the term “property”. “Owners” (another framing term), lawyers and lawmakers all tend to see IP as sonmething that is an innate right because it is somehow the personal possession of the owner, in the same way a piece of land is. Hence the warnings on DVDs about “You wouldn’t steal a car …” etc.

Whereas, of course, it is historically and in economic theory just a pragmatic method of bringing forth invention, and should be judged solely by its efficacy in so doing (Article I, Section 8 the US constitution gets that right). “Rights” have little to do with it, but lawmakers don’t seem to understand that (perhaps because it’s not in the interest of the lobby groups that they do so).