[iDC] global rights expropriation in the intersection between theindustrial and the information ages

[Guido Sohne]

On 5/23/07, Amanda Chapel <chapel at strumpette.com> wrote:
> Certainly articulates your position well Guido.  That said, as an
> argument... it is polar and not in your best interest regrettably.
> Metaphorically speaking, we've got bigger guns. That's all.
>
> What might be a better tact is to see how we might build a bridge that
> accommodates your needs and gives an incentive to be a member and partner in
> the system that exists.

Ok. Best to explain my starting position by reproducing below a
response I've made elsewhere (on Newsvine). If there was a bridge,
that would be where I would start building from.

-- G.

==================================================

<<Patent rights are not over ideas. Ideas can not be patented, nor
owned, except arguably software. I am opposed to the patenting of
software and look forward to the day when it is abolished.>>

We are somewhat close in how we are thinking on this but we diverge in
the gap between theory and implementation. The implementation of
patents in the current intellectual property regime, is resulting in
software patents, and to stall copyright, we also have new technology
to restrict copying of content that is in the hands of, or purchased
by a consumer. I think that I prefer to have these restrictions in the
technical system, not in the legal system.

<<This is incorrect. Patents have nothing to do with science and
culture, but rather technology and manufacture. Patent systems have
been around for centuries. The US Patent system was codified into law
by the US Constitution, and the founding fathers were no dummies. They
understood that the production of useful inventions from mere ideas
would be fostered if the significant resources required to bring them
into existence could be compensated by a government granted
monopoly.>>

Distinguishing again between the theory of how patents should work,
and how they are actually being used today, I'd like to point out that
you have mentioned the US Constitution. So that's for the US, that is
what that nation chose.

I reject your inherent assumption that US law and legal systems should
take precedence over other systems, or should seek to cause other
systems to fall in line with its own, such as expressed via TRIPS and
through WIPO. I can certainly understand the motivations there, but we
are under no circumstances obliged to accept that. You should accept
the laws of the land where ever and how ever they may be, whether you
like it or not.

For a product that I develop in the USA, I am willing to let your
system determine how to value, protect or monetize it. And for
products not only created, but utilized within our systems, I want to
create my own rules. Such as making rent seeking on intellectual
property a thing of the past.

In short, I reject your imperial logic that we are required to follow
your rules. This is informed by actions such as the US withdrawal from
its WTO obligations, the refusal to enter into the Kyoto treaty, which
will also affect us disproportionately and other such unilateral
actions. You want to play unilateral, you can, and so can we.

<<In my opinion, your essential premise can be dismissed by the
recognition of two simple facts.

(1) there is a vast universe of knowledge in the public domain in
science and technology that the Third World can access without any
regard for intellectual property. Go for it.

(2) US patents, for example, have a legal lifetime of 20 years from
the date of application, which often amounts to about 17 years from
the issue date. This means that ALL technology up to 1990 is yours for
the taking.>>

You mentioned that patents have nothing to do with culture, yet you
are pointing to an example of US culture, where patents are used as
instruments as you describe. I'd like to mention some things that I
think could be to OUR advantage.

1) We have far fewer patents and claims than you do. What we stand to
gain is far less than what we stand to lose when we play the
intellectual property valuation game (each side stacks their patents
and we use the difference in the value of the stacks, to determine the
'negotiating position').

2) Why should we be happy with 20 year old and public domain
technology? I see no reason why we should not instead use modern
technology and bypass your expensive overheads and inefficiencies that
lead to your products costing too much. If that means you subsidize
us, then that's great, because you've been using our cheap commodity
goods and artificially low priced resources to subsidize your
economies. You've taken many people from Africa, you've used them to
build your nation and we insist on our option to transfer the subsidy
from our backs to yours.

<<You seem to be suggesting that the elimination of Third World ills
relies on the technology of the last 17 years, however I believe that
the wheel and several other items were invented prior to that time.>>

I reject your whole formulation since it depends on laws that are
national in nature. I reject the international systems and agreements
as they are because they have been one sided and one dimensional in
their purpose and effect. If after rejecting everything, we want to
selectively adopt portions at our own time and pace, that is entirely
up to us, to determine how and when it would be convenient to do so.

<<On the contrary, theft of IP will ultimately exact a greater cost in
curtailment of cooperation, investment, and most of all, trust. IP is
a two-way street, and if mutual IP treaties are not honored, Third
World inventors will lose as well. If you had a great improvement for
a water pump, let's say, that could enable employment in some
community or village, do you think this could be accomplished if
anyone else may legally take this new invention, and produce your
product elsewhere? And knowing this, are you likely to make the
investment in time and effort to experiment until you perfected it?
Will an investor be willing to support your idea financially, if he
knew that anyone could walk away with it, and his investment without
any return to him. Yes, in an ideal world or perhaps on Mars.>>

There is no such thing as theft of IP. Protect your technology via
technological means if you wish to do so. There is nothing stopping
you from doing that. We want to investigate alternative means of
remuneration, such as imposing taxes in lieu of royalties and using
that to build our own sectors that can handle these functions. We keep
that money for ourselves. You can keep it for yourself when in the US
and feel free to not export it if you don't want it to propagate, such
as you do with your military hardware. What you export is fair game
for the taking. We recognize your legal systems only in so far as they
are operating within your national boundaries.

<<In business, these are known as trade secrets, and anyone who
discovers them by reverse engineering or other means (short of theft)
may do as he wishes with them. Do you seriously think that if Intel
kept its processes as trade secret, someone in a Third World country
could reverse engineer their chips?>>

Irrelevant. What is important to us is that there are no legal
barriers to our technological development. This is not negotiable for
me.

<<Patents are complimentary; they are fully disclosed, but given
government protection which prohibits others from making, using or
selling the invention. What you want is for a patent holder to fully
disclose their invention (as required under international patent laws)
so you may use it freely. Remember, patents are not for ideas. They
are attached to tangible articles of manufacture. As long as you are
willing to steal a patent, why don't you just break into the
manufacturer's plant and take over operations? What's the difference>>

I reject the international patent laws. As before, you are free to do
what you please so long as it stays within your national borders. I
find it ironic that you are talking about breaking into a
manufacturer's plant to steal, when people are breaking into my body
to steal what is mine. I include all derivative works related to my
genes, as well as all ancestral works related to them as my personal
property, my body, and isn't it so strange that the 'manufacturers'
can come and steal this from me, and you want to tell me that I am the
one breaking into their plants?