billy g Wrote:
I'd imagine 70 years after the author dies is meant to preserve the economic rights for the author AND his/her living heirs. Isn't the american way to try to build a nest egg for our children?
This is a given justification yes, although the influence of the entertainment industry has had a demonstrably greater effect than economic theory on copyright terms. Most people build nest eggs by investing the money they make in their lifetimes. I see no particular justification for giving a free ride to the children of people who make things that happen to be copyrightable for a living and not to other people who do equally valuable work.
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Philosophically though, I might ask why shouldn't the copyright be permanent? If a publishing company is going to continuing printing and selling classical works, why shouldn't an author's heirs be compensated? Patent law to me is an entirely different animal. Literary or musical works don't build on each other in the same way that scientific advancements do.
Because the marginal benefit to "science and the useful arts" gained by giving an author's great great great grandson royalties is outweighed by the benefit to the public in having unrestricted access to that work. And I simply disagree that works of music and literature don't borrow from past works.
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I think a large part of the reasoning behind the expiration of patents is that the discoveries have become part of basic scientific knowledge at some point. Again though, I think your views of the public interest are simplistic and narrowly defined. Private property rights are at the core of capitalism and the level of their legal protection is one of the greatest differentiators between first world economies and third world economies.
It's no use substituting my simplistic view of the public interest with one so broad as "more property rights means more stable society." Tell me why giving the heirs of authors an exclusive right to the author's work benefits anyone but the heir.
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I'm not going to argue that there aren't gray areas in what should be protected but I think we should be erring on the side of favoring patentees.
I might agree with you if our system did a better job of deciding who is rightfully a patentee. But if people can easily get patents who don't deserve them, then ratcheting up penalties for infringement is harmful and retrogressive. And that's the situation we're in.
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I also disagree with the distinction you seem to be making between product inventions and the application of new scientific knowledge. Most products at their core consist of some combination of raw materials that are not patentable on their own. Its the unique manufacturing process or combinatorial chemistry which makes them patentable.
Agreed, a new process is patentable even if its components are not. I never said anything else. But when you say "gene therapy" when I said "patents on isolated genes," you confuse the issue and are talking about something entirely different. A gene therapy may well be patentable. But what the USPTO and courts allowed to go on for years, until the SDNY recently put a (preliminary) stop to it, was the patenting of gene sequences isolated from the human genome. The sequences are found in nature and the method for isolating them was not invented by the patentee, but if using that process you isolated some gene sequence and could name some function for that gene sequence, you got a patent. No doubt, the isolated gene sequences were useful, but they were not a new process, an invention, or a new composition of matter, so they weren't patentable under the law. And yet.
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How is gene therapy or software that different? In the short term, the public might be better if we changed the law to allow people to use Windows or MS Office for free but would society be better off if Microsoft had not had the profit motive to create the software to begin with?
Software is well protected by copyright. Microsoft did not apply for any software patents until after the height of its success (Windows 95), and Bill Gates wrote a memo a long time ago saying that patents on software would only impede innovation in the software industry. Then other companies started getting patents, and Microsoft saw that without a patent portfolio of its own, it would be exposed to patent risk from other companies seeking to freeride on its success, so it got some (a metric fuckton of) patents primarily for defensive purposes. And then, as Microsoft became bloated and stopped innovating, and its profits declined, it started using those patents aggressively. And that's how it goes with software patents -- those who can no longer innovate litigate.
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