If patents aren't ethical, then there are lots of things that aren't ethical, and I don't think the tech industry has the balls to confront those.
E.g. trademark law supports the existence of the advertising industry, by creating protectable brands through restrictions on speech. Most web companies wouldn't exist in their current form if there wasn't a tremendous incentive for companies to build up those protectable brands through advertising.
At least in the case of trademarks, the potential for defamation gives it some credibility. I suppose from the standpoint of brand confusion alone, trademarks and patents are both equally unethical in that they both do not recognize independent discovery. Copyright is a much more balanced approach imo. Frankly I don't think many in many industries have the balls to admit just how much they would dislike their natural rights trampled on. In my experience, any time the conversation heads in that direction, the affected parties are seen scurrying away. For instance, I reckon a lawyer would reject any notion of limiting their natural right to practice law? Or perhaps even just certain techniques thereof. Really, I think it's time we start carving up territory in the domain of legal tools and tactics. Heck, I say we start carving up territory in just about anything one can think of. At least then the ridiculousness of it all might become apparent to enough weighty makers, that they would see to it that it'd be changed.
Lol that would be highly unethical. More seriously though, names are not people. Corporations are people, my friend.
Oh and lastly, I do tend to think that on the basis of defamation alone, a reasonable argument for trademarks could be made. Nothing even remotely close to this argument exists for patents.
There are two issues here: whether a given law is ethical or not as written, and whether the spirit of the law can be supported even if it is unethical as written.
As it turns out, one can make an argument that copyrights/trademarks can be reformed, but patents cannot. The difference is that no one can accidentally "trip" over a sensibly defined copyright or trademark, whereas patents are intrinsically a legal landmine -- people can and often do accidentally infringe.
First, I'm not sure how accidental infringement goes to the heart of whether whether the laws are ethical or not. They're all fundamentally restraints on free expression.
Second, you can accidentally infringe on a trademark, and can be prevented from using a trademark even if you came up with the term independently.
Third, there is no reason why you couldn't add an "independent invention" defense to patent.
Fourth, you have no basis for your claim that people "often" accidentally infringe patents.
- First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong.
- Second, I am not referring to trademarks as presently defined.
- Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.
- Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
> First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong.
I don't think I follow what you're trying to say. My point is that whether something can be accidentally infringed or not is a weird criterion to use to separate ethical and unethical restraints on free expression. We create civil liability for lots of things that happen on accident. I think the ethical discussion, if there is one, centers on whether these restraints on free expression or valid in the first place.
> Second, I am not referring to trademarks as presently defined.
You said that trademarks/copyright could be distinguished from patent based on accidental infringement. You could define trademarks in a way where accidental infringement didn't create liability, but you could define patents that way too. Neither are defined that way presently.
> Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.
I'm not sure what 3rd grade reading level principles of ethical justice you're talking about. We require defendants to prove certain affirmative defenses all the time, generally in cases where something is unlikely to have occurred without wrongdoing. E.g. if you kill somebody in self defense, you're obligated to at least present evidence that it was in self-defense. And of course we're talking about civil litigation here, not criminal litigation. "Innocence" is the wrong terminology.
> Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
I'm not the one who said that people "often" accidentally infringe patents, you were.
At least the majority if your remarks are patent dishonesty (pun intended). If you want, pick out what you think is the most honest and relevant of your remarks and I'll respond to that one, but I'm not going to get into a tit-for-tat with someone of your ilk.
The dichotomy between civil and criminal is irrelevant. You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical. An ethical person leaves others alone unless these others violate your basic rights. And if they do, then the burden is on you to prove they did, not on them to prove they didn't.
So the burden of proof principle applies here, as it should everywhere else in the law. Of primary concern here is the burden of proof that advocates of patents have on proving that the alleged patent violator deserves to be interfered with, blocked, fined, etc. They have not met this burden. Ergo they do not have an ethical right to enforce patents.
> The dichotomy between civil and criminal is irrelevant.
It is very relevant. What is "ethical" in the context of civil and criminal cases is very different. For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence.
> You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical.
"Affirmative defense" does not mean that defendants are picked at random and forced to prove they didn't do anything wrong. It means that defendants must make a credible evidentiary showing in defense after the plaintiff has already presented evidence suggesting wrongdoing.
Whether you make something an affirmative defense or an element of the case in the civil context isn't about ethics, it's about statistics. So long as granted patents aren't trivial (and that's a separate issue), it's unlikely that someone would infringe on it accidentally. Given that, there is nothing unfair about making the defendant present evidence about why that unlikely accident did in fact happen. The plaintiff still bears the burden of proving that, however.
Do you have something to offer here than merely repeating the contrary of what I said? E.g. "It is very relevant. What is "ethical" in the context of civil and criminal cases is very different."
This is not evidence for your contrary stance, it's merely repeating the status quo: "For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence."
I offer evidence for how things are treated in other parts of the law because I'm analogizing to other things that are considered ethical in our society (and have been for centuries). I can't be charged with guessing that you consider these other things unethical too.
You're playing an absolutely ridiculous game of "hide the ball" here. In your head you clearly have some specific assumptions about what is "ethical" but you're not forthcoming with those assumptions. Instead, you claim I'm being dishonest for not divining the hidden rules you've laid out in your own head.
I'm going to guess you're some sort of libertarian or possibly anarchist, playing the usual game of implicitly arguing from a non-mainstream value framework without acknowledging that to be the case, then getting upset at people for not acknowledging your unstated unconventional beliefs.
You are contradicting my point without offering an argument, which amounts to you simply repeating your view over and over in varied forms (as you just did yet again), a basic logical fallacy.
Comments
If patents aren't ethical, then there are lots of things that aren't ethical, and I don't think the tech industry has the balls to confront those.
E.g. trademark law supports the existence of the advertising industry, by creating protectable brands through restrictions on speech. Most web companies wouldn't exist in their current form if there wasn't a tremendous incentive for companies to build up those protectable brands through advertising.
At least in the case of trademarks, the potential for defamation gives it some credibility. I suppose from the standpoint of brand confusion alone, trademarks and patents are both equally unethical in that they both do not recognize independent discovery. Copyright is a much more balanced approach imo. Frankly I don't think many in many industries have the balls to admit just how much they would dislike their natural rights trampled on. In my experience, any time the conversation heads in that direction, the affected parties are seen scurrying away. For instance, I reckon a lawyer would reject any notion of limiting their natural right to practice law? Or perhaps even just certain techniques thereof. Really, I think it's time we start carving up territory in the domain of legal tools and tactics. Heck, I say we start carving up territory in just about anything one can think of. At least then the ridiculousness of it all might become apparent to enough weighty makers, that they would see to it that it'd be changed.
Hi, I am changing my name to distant-uncle and embarking on a public campaign of cat torturing all across America. Is that acceptable?
Lol that would be highly unethical. More seriously though, names are not people. Corporations are people, my friend. Oh and lastly, I do tend to think that on the basis of defamation alone, a reasonable argument for trademarks could be made. Nothing even remotely close to this argument exists for patents.
There are two issues here: whether a given law is ethical or not as written, and whether the spirit of the law can be supported even if it is unethical as written.
As it turns out, one can make an argument that copyrights/trademarks can be reformed, but patents cannot. The difference is that no one can accidentally "trip" over a sensibly defined copyright or trademark, whereas patents are intrinsically a legal landmine -- people can and often do accidentally infringe.
First, I'm not sure how accidental infringement goes to the heart of whether whether the laws are ethical or not. They're all fundamentally restraints on free expression.
Second, you can accidentally infringe on a trademark, and can be prevented from using a trademark even if you came up with the term independently.
Third, there is no reason why you couldn't add an "independent invention" defense to patent.
Fourth, you have no basis for your claim that people "often" accidentally infringe patents.
- First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong.
- Second, I am not referring to trademarks as presently defined.
- Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.
- Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
> First, you can't claim to have created an ethical principle if it's self-contradictory. If accidental infringement is an essential result, then something is wrong.
I don't think I follow what you're trying to say. My point is that whether something can be accidentally infringed or not is a weird criterion to use to separate ethical and unethical restraints on free expression. We create civil liability for lots of things that happen on accident. I think the ethical discussion, if there is one, centers on whether these restraints on free expression or valid in the first place.
> Second, I am not referring to trademarks as presently defined.
You said that trademarks/copyright could be distinguished from patent based on accidental infringement. You could define trademarks in a way where accidental infringement didn't create liability, but you could define patents that way too. Neither are defined that way presently.
> Third, requiring someone to prove their innocence violates one of the most basic principles of ethical justice.
I'm not sure what 3rd grade reading level principles of ethical justice you're talking about. We require defendants to prove certain affirmative defenses all the time, generally in cases where something is unlikely to have occurred without wrongdoing. E.g. if you kill somebody in self defense, you're obligated to at least present evidence that it was in self-defense. And of course we're talking about civil litigation here, not criminal litigation. "Innocence" is the wrong terminology.
> Fourth, it is irrelevant to this discussion how often it is, but clearly, 40,000 software patents filed per year constitutes a lot of opportunity for infringement. If you are doing something meaningful and interesting, you are likely violating a patent. But again, this point is not essential to the main issue.
I'm not the one who said that people "often" accidentally infringe patents, you were.
At least the majority if your remarks are patent dishonesty (pun intended). If you want, pick out what you think is the most honest and relevant of your remarks and I'll respond to that one, but I'm not going to get into a tit-for-tat with someone of your ilk.
What on earth are you talking about? "Someone of my ilk?" Every single thing I said is 100% accurate. You just clearly didn't read your own post.
Well if you're not going to pick then I will.
The dichotomy between civil and criminal is irrelevant. You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical. An ethical person leaves others alone unless these others violate your basic rights. And if they do, then the burden is on you to prove they did, not on them to prove they didn't.
So the burden of proof principle applies here, as it should everywhere else in the law. Of primary concern here is the burden of proof that advocates of patents have on proving that the alleged patent violator deserves to be interfered with, blocked, fined, etc. They have not met this burden. Ergo they do not have an ethical right to enforce patents.
> The dichotomy between civil and criminal is irrelevant.
It is very relevant. What is "ethical" in the context of civil and criminal cases is very different. For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence.
> You don't get to burden your fellow citizens with arbitrary hoops to jump through and also call yourself ethical.
"Affirmative defense" does not mean that defendants are picked at random and forced to prove they didn't do anything wrong. It means that defendants must make a credible evidentiary showing in defense after the plaintiff has already presented evidence suggesting wrongdoing.
Whether you make something an affirmative defense or an element of the case in the civil context isn't about ethics, it's about statistics. So long as granted patents aren't trivial (and that's a separate issue), it's unlikely that someone would infringe on it accidentally. Given that, there is nothing unfair about making the defendant present evidence about why that unlikely accident did in fact happen. The plaintiff still bears the burden of proving that, however.
Do you have something to offer here than merely repeating the contrary of what I said? E.g. "It is very relevant. What is "ethical" in the context of civil and criminal cases is very different."
This is not evidence for your contrary stance, it's merely repeating the status quo: "For example, in criminal cases a conviction requires proof beyond a reasonable doubt. A lesser standard is considered unethical. In a civil case, the bar is lower--proof by a preponderance (simple majority) of the evidence."
I offer evidence for how things are treated in other parts of the law because I'm analogizing to other things that are considered ethical in our society (and have been for centuries). I can't be charged with guessing that you consider these other things unethical too.
You're playing an absolutely ridiculous game of "hide the ball" here. In your head you clearly have some specific assumptions about what is "ethical" but you're not forthcoming with those assumptions. Instead, you claim I'm being dishonest for not divining the hidden rules you've laid out in your own head.
I'm going to guess you're some sort of libertarian or possibly anarchist, playing the usual game of implicitly arguing from a non-mainstream value framework without acknowledging that to be the case, then getting upset at people for not acknowledging your unstated unconventional beliefs.
You are contradicting my point without offering an argument, which amounts to you simply repeating your view over and over in varied forms (as you just did yet again), a basic logical fallacy.