The patent system is broken

Here's some reading on patents.

The Economist: Patents against prosperity

At a time when our future affluence depends so heavily on innovation, we have drifted toward a patent regime that not only fails to fulfil its justifying function, to incentivise innovation, but actively impedes innovation. We rarely directly confront the effects of this immense waste of resources and brainpower and the attendant retardation of the pace of discovery, but it affect us all the same. It makes us all poorer and helps keep us stuck in the great stagnation.

Huffington Post: The Spoilsmen: How Congress Corrupted Patent Reform

When legislators first introduced a patent bill in 2005, they designed it to lower the costs of lawsuits burdening Internet and software companies. Lured by the big, juicy settlements to be won by suing huge companies for intellectual property theft, an entire industry had emerged around patent chasing alone. These so-called "patent trolls" don't produce any goods. Instead, they secure unclaimed patents for ideas in use and try to cash out in court.

Trolls file hundreds of lawsuits a year over "low quality" patents -- lobbyist legal jargon for the questionable or downright bizarre patents routinely granted by the understaffed Patent and Trademark Office. In recent years, patents have been approved for products including a wheeled flower pot (patent No. 7,908,942), the crustless peanut butter and jelly sandwich (patent No. 6,004,596), a decorative box that can be placed in a casket (No. 7,908,942) and an accounting scheme that helps people dodge taxes by moving stock options around (No. 6,567,790). Once approved by the patent office, it's difficult and costly to overturn the patent in courts, which grant significant deference to the office's decisions.

And finally, Mark A. Lemley's paper, The Myth of the Sole Inventor.

The canonical story of the lone genius inventor is largely a myth. Edison didn’t invent the light bulb; he found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Man, who in turn built on lighting work done by others. Bell filed for his telephone patent on the very same day as an independent inventor, Elisha Gray; the case ultimately went to the U.S. Supreme Court, which filled an entire volume of U.S. Reports resolving the question of whether Bell could have a patent despite the fact that he hadn’t actually gotten the invention to work at the time he filed. The Wright Brothers were the first to fly at Kitty Hawk, but their plane didn’t work very well, and was quickly surpassed by aircraft built by Glenn Curtis and others – planes that the Wrights delayed by over a decade with patent lawsuits.

Having read through this stuff, it's actually interesting to speculate where our "sole inventor" myth even comes from in the first place.

Banning fictional child pornography is wrong

I'll let the Ottawa Citizen introduce the subject:

Ottawa Citizen: Crimes of imagination

Canada has charged an American and is threatening him with at least a year in jail because he came over the border in 2010 with comics on his laptop, comics the customs officer decided were child pornography. If he's convicted, he faces a mandatory minimum sentence of a year for importing the material. This case and others like it demonstrate the flaws in Canada's law.

According to the Comic Book Legal Defence Fund, the comics were in the "manga" style that originated in Japan (Astro Boy and Sailor Moon are examples of manga comics. Charles Brownstein of the CBLDF says he believes the comics in this case include images of stick figures in sexual positions).

The Canadian law criminalizes fictional child pornography, by which I mean pornographic material like drawings or text that features children, but that no real children were abused in the making of. I'll let the Citizen finish:

But Canada's current law goes beyond pornography that causes harm to children. It also makes some works of the imagination - stories and drawings - illegal if they depict people under the age of 18 in sexual situations. Many classic works of art might meet that definition, and the law does allow for a defence on the grounds of artistic merit. This puts the courts in the bizarre position of determining what is a work of art. Citizens cannot hope to know in advance what the law really forbids, and whether the judge will share their opinion of what is art. Policing the way you express yourself on a piece of paper or on your laptop comes awfully close to policing your thoughts.

Judges are not meant to be arbiters of taste; they are meant to balance rights in a free society. Imaginary people do not have rights.

Similar laws are in the works in Finland as well, where it will join other highly questionable laws that already make even the definition of child pornography arbitrary. In fact, Finnish courts are already not only determining what constitutes art, but also whether parody is succesful, because that is the determining criterion to whether a parody constitutes an IP violation. So in Finland, courts determining what is art won't be anything new.

If you think they're exaggerating about policing thoughts, by the way, Finland's state police have already applied for a law criminalizing talking about having sex with children in an approving manner. I so wish I was making that up.

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There are those who say that protecting children from sexual abuse is so important that we must do anything to stop it. Whatever one may think of this, laws against fictional child pornography fail on that count.

Daily Mail: Charity's anger at proposal to make child porn legal 'to protect children from abusers'

The research found that child sex crimes fell when child pornography was more easily accessible.

The discovery tallies with similar studies in Denmark and Japan, where child pornography is not illegal, that found incidences of child sex abuse were lower in those countries.

The conclusion of the new study is that ‘artificially-produced’ child pornography should be made available to prevent real children being abused.

Pornography was strictly prohibited in the Czech Republic between 1948 and 1989.

The ban was lifted with the country's transition to democracy and, by 1990, the availability and ownership of sexually explicit materials rose dramatically. Even the possession of child pornography was not a criminal offence.

Diamond and his team looked at what actually happened to sex-related crimes as it moved from having a strict ban on sexually explicit materials to the material being decriminalised.

Results from the Czech Republic showed that rape and other sex crimes have not increased following the legalisation and wide availability of pornography.

Most significantly, the incidence of child sex abuse has fallen considerably since 1989, when child pornography became readily accessible – a phenomenon also seen in Denmark and Japan.

They also found that the number of cases of indecent exposure and other, less serious, sex crimes fell dramatically in the wake of pornography becoming more readily available.

The researchers say: ‘As with adult pornography appearing to substitute for sexual aggression everywhere it has been investigated, we believe the availability of child porn does similarly.’

So not only are no children harmed in the making of fictional child pornography, its availability seems to decrease sex crimes against children. In general, pornography decreases sex crime, so this finding makes sense. I know that this cuts no ice with determined anti-pornography crusaders, who replace scientific data with claims that porn makes you gay, but the reality is that fictional child pornography, if anything, seems to make children more safe.

However, that's a terrible argument for not banning it. The Ottawa Citizen put it quite nicely when they said:

There's no point in having a right to free speech if we make exceptions for everything that people find distasteful or offensive.

In fact, that's the kind of free speech we have in Finland; our constitution guarantees Finnish citizens freedom of expression, except when constrained by law. In other words, our constitution gives us a right to say things that we're not banned from saying. Some right! The only place I can think of that doesn't allow its citizens to do things that aren't specifically forbidden is the fictional city of Raseir in the classic CRPG Quest for Glory 2, which boasted a street named "Everything Not Mandatory is Forbidden". So we, as Finnish citizens, have more rights than the inhabitants of a fictional computer game dictatorship.

Hooray!

But I digress. As a criterion for banning expression, the harm it causes is a dangerous guideline. In nearly every debate on free speech, someone quotes the example of shouting "fire!" in a crowded theater. It might be salutary to remember where the expression comes from: it was used by Supreme Court Justice Oliver Wendell Holmes, Jr., to justify sentencing a man to six months in prison for distributnig anti-draft leaflets. It was the judge's opinion that inciting people against the draft posed a "clear and present danger" to the United States, and was therefore illegal.

This tug-of-war between the desire to criminalize dissent and uphold freedom of expression should serve to point out that the harmfulness or harmlessness of speech is insufficient in itself as a criterion. Harm is a flexible concept that can be stretched a long way, and if we subordinate free expression to a critetion of harm, are we really willing to ban anything that can be considered, or even proven, to have harmful effects?

Suppose that someone demonstrated that people who read detective novels are more likely to commit violent crime than people who don't? Or, to take a real-life example, someone came up with data to support the decades-old idea that comic books predispose childrne to crime? Would you then be willing to ban detective novels and comic books under the same criteria as fictional child pornography? After all, they'd be harmful. Remember that as far as we know, no form of expression can directly cause a person to commit a crime; all they can do is predispose. That's a matter of much correlation and very little causation.

This is why it's dangerous, and I believe in many cases morally dishonest to argue against banning fictional child pornography just by quoting its beneficial effect on sex crime rates. That isn't actually an argument in favor of freedom of expression; it's an argument that this particular kind of expression is beneficial and should therefore be allowed. It's a whole different story, and begs the question: if the data should be refuted by a better study, would you change your mind? And would you support the hypothetical comic-book ban if data in its favor were produced? If not, you're making a morally dishonest argument.

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In other words, this isn't a question of whether fictional child pornography is beneficial or harmful, but of what the limits of free expression are. It's been shown time and again that juging expression by the harm it supposedly causes is a primrose path to censorship. I can't believe that even the most ardent anti-child pornography crusaders would want to live in a country where all expresion is regulated based on whether it's deemed harmful to society or not. There's practically no limit to what such a dystopia might end up banning. After all, people are healthier if they're happy; therefore things that make them unhappy make them less healthy, and are therefore harmful. Under this rationale anything could be banned.

The only rationale for the outright ban on child pornography is that a child was necessarily abused to create the image. It should be recognized that this is also a problematic piece of reasoning; technically, it could equally well be used to ban pictures of terrorist attacks. Even if we accept the ban on child pornography, we can't extend it to fictional child pornography using the same rationale, because no children were necessarily abused for its creation. We don't ban other fictional depictions of crime, even other fictional depictions of sex crime, so why should the sexual abuse of children be treated differently?

Any ban of fictional child pornography necessarily creates one of two disturbing precedents: either that expression can be regulated according to its harmfulness, or that when it comes to child pornography, a different standard of civil rights prevails. Finland is currently pursuing the latter policy. Neither should be chosen by a free country.

Criminal insanity, online and off

First, a piece of madness I must have missed when it hit the news and just happened to run into.

NY Daily News: Florida mom Alexandra Tobias pleads guilty to murdering baby for crying during her FarmVille game

A Florida woman admitted shaking her 3-month-old baby to death after the little boy's crying distracted her from playing a wildly popular Facebook game.

Alexandra Tobias, 22, told cops she was playing FarmVille and her baby, Dylan Lee Edmondson, wouldn't stop crying.

According to the Florida Times-Union, she confessed to shaking the baby, smoking a cigarette to calm down and then shaking the baby again. The baby may have hit his head during the January incident.

Tobias pleaded guilty on Wednesday.

She later got a 50-year sentence. And here I thought FarmVille was bad for you before I knew about this.

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Here's another example of criminal insanity:

FOX Chicago: Teen Charged with Murder in Police-Involved Shooting, Armed Robbery Case

Ross was charged Thursday evening with murder and armed robbery with a firearm, police News Affairs Officer Robert Perez said.
The incident unfolded about 8 p.m. Wednesday when two police sergeants were stopped by a person saying two people had just committed a robbery near East 70th Street and South Cregier Avenue.

The sergeants saw two people matching the description and ordered them to stop, police said. One of the suspects, with a weapon in his hand, turned in the sergeant’s direction. The sergeant shot the suspect, identified by the Cook County Medical Examiner’s office as 15-year-old Tatioun Williams.

Williams, of 1311 E. 69th St., was pronounced dead at 8:40 p.m. at Northwestern Memorial Hospital, according to the medical examiner’s office. An autopsy Thursday found he died from a gunshot wound to the back and ruled the death a homicide.

A weapon and proceeds from the robbery were recovered at the scene, police said.

No one else was injured, police said.

So two guys commit an armed robbery, and as they're escaping, the police shoot one of them. Therefore, the surviving criminal is charged with murder.

This is how the felony murder rule works: if one perpetrates a felony, and as a result someone is killed, the perpetrator is charged with the murder. Here, the result even means that if the police shoot your accomplice, you are charged with his murder.

Another example of this idea in action here:

NY Times: Serving Life for Providing Car to Killers

CRAWFORDVILLE, Fla. — Early in the morning of March 10, 2003, after a raucous party that lasted into the small hours, a groggy and hungover 20-year-old named Ryan Holle lent his Chevrolet Metro to a friend. That decision, prosecutors later said, was tantamount to murder.

The friend used the car to drive three men to the Pensacola home of a marijuana dealer, aiming to steal a safe. The burglary turned violent, and one of the men killed the dealer’s 18-year-old daughter by beating her head in with a shotgun he found in the home.

Mr. Holle was a mile and a half away, but that did not matter.

He was convicted of murder under a distinctively American legal doctrine that makes accomplices as liable as the actual killer for murders committed during felonies like burglaries, rapes and robberies.

In all seriousness, this is insane. As the New York Times article says, this law doesn't actually seem to have any deterrent effect, by comparison with jurisdictions that don't have it. Furthermore, it blurs the definition of murder; as the paper referenced by the New York Times points out, murder is defined by an intent to kill, except in this case, where you can be guilty of murder by lending your car to someone.

What makes it even more dangerous, in my opinion, is the simple precedent that a person who is in no way directly responsible for a crime, and who may even be totally unaware that it has occurred, can be charged with it. Imagine extending that idea to other crimes.

But most of all, it's completely unrealistic to postulate, even as a system of ethics, that everyone must take responsibility for all consequences of their actions. Responsibility for consequences needs to be within reason; if someone lends a homicidal friend a shotgun, I have no problem with them being held culpable, but lending someone a car doesn't seem to be strictly comparable.

Even crazier is the notion that when the police shoot your accomplice in the back, you're guilty of murder. Yes, I accept the idea that had you not been involved in the armed robbery in the first place, your friend wouldn't have been shot. But is this in any way a realistic standard of ethics? If people are going to be held criminally liable for the actions of others, where on earth do we draw the line? And doesn't this, in fact, give police a virtual blank check when pursuing a felony suspect, because any deaths that occur during the crime and subsequent pursuit will be blamed on the suspect, whether he had anything to do with them or not?

This touches on what I've been thinking about in general with regard to law lately. It seems to me that on the whole, our legislation is essentially random. I've been toying around with the idea of constructing a legal code not as a confusing jumble of separate laws but as a system of principles. Surely one of those principles should be that a person can only be held responsible for his own actions or inactions, not for the actions or inactions of others. In this case, both armed robbers should be responsible for themselves, and the cop who shot one of them responsible for the shooting. If the shooting is deemed justified, then it is, but under no stretch of the imagination should the police officer's decision to use lethal force be the other robber's responsibility.

I'll chalk this up as yet another odd aspect of an increasingly insane US justice system. Here's another example:

Wired: There’s a Secret Patriot Act, Senator Says

“We’re getting to a gap between what the public thinks the law says and what the American government secretly thinks the law says,” Wyden told Danger Room in an interview in his Senate office. “When you’ve got that kind of a gap, you’re going to have a problem on your hands.”

What exactly does Wyden mean by that? As a member of the intelligence committee, he laments that he can’t precisely explain without disclosing classified information.

The United States seems to be reaching the point where legistlation is classified to protect national security.

I'd comment, but I don't know how.

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Here's some surveillance state news, too.

Nature: Terrorist 'pre-crime' detector field tested in United States

Planning a sojourn in the northeastern United States? You could soon be taking part in a novel security programme that can supposedly 'sense' whether you are planning to commit a crime.

Future Attribute Screening Technology (FAST), a US Department of Homeland Security (DHS) programme designed to spot people who are intending to commit a terrorist act, has in the past few months completed its first round of field tests at an undisclosed location in the northeast, Nature has learned.

Like a lie detector, FAST measures a variety of physiological indicators, ranging from heart rate to the steadiness of a person's gaze, to judge a subject's state of mind. But there are major differences from the polygraph. FAST relies on non-contact sensors, so it can measure indicators as someone walks through a corridor at an airport, and it does not depend on active questioning of the subject.

The tactic has drawn comparisons with the science-fiction concept of 'pre-crime', popularized by the film Minority Report, in which security services can detect someone's intention to commit a crime. Unlike the system in the film, FAST does not rely on a trio of human mutants who can see the future. But the programme has attracted copious criticism from researchers who question the science behind it (see Airport security: Intent to deceive?).

Do, in fact, see the linked article, which starts off with this:

In August 2009, Nicholas George, a 22-year-old student at Pomona College in Claremont, California, was going through a checkpoint at Philadelphia International Airport when he was pulled aside for questioning. As the Transportation Security Administration (TSA) employees searched his hand luggage, they chatted with him about innocuous subjects, such as whether he'd watched a recent game.

Inside George's bag, however, the screeners found flash cards with Arabic words — he was studying Arabic at Pomona — and a book they considered to be critical of US foreign policy. That led to more questioning, this time by a TSA supervisor, about George's views on the terrorist attacks on 11 September 2001. Eventually, and seemingly without cause, he was handcuffed by Philadelphia police, detained for four hours, and questioned by Federal Bureau of Investigation agents before being released without charge.

George had been singled out by behaviour-detection officers: TSA screeners trained to pick out suspicious or anomalous behaviour in passengers. There are about 3,000 of these officers working at some 161 airports across the United States, all part of a four-year-old programme called Screening Passengers by Observation Technique (SPOT), which is designed to identify people who could pose a threat to airline passengers.

It remains unclear what the officers found anomalous about George's behaviour, and why he was detained. The TSA's parent agency, the Department of Homeland Security (DHS), has declined to comment on his case because it is the subject of a federal lawsuit that was filed on George's behalf in February by the American Civil Liberties Union.

Again, I'm not sure how to comment on this. It's terrifying.

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It seems fitting that just as my copy of The Gulag Archipelago arrived in the mail, I saw this news item:

Guardian: China used prisoners in lucrative internet gaming work

As a prisoner at the Jixi labour camp, Liu Dali would slog through tough days breaking rocks and digging trenches in the open cast coalmines of north-east China. By night, he would slay demons, battle goblins and cast spells.

Liu says he was one of scores of prisoners forced to play online games to build up credits that prison guards would then trade for real money. The 54-year-old, a former prison guard who was jailed for three years in 2004 for "illegally petitioning" the central government about corruption in his hometown, reckons the operation was even more lucrative than the physical labour that prisoners were also forced to do.

"Prison bosses made more money forcing inmates to play games than they do forcing people to do manual labour," Liu told the Guardian. "There were 300 prisoners forced to play games. We worked 12-hour shifts in the camp. I heard them say they could earn 5,000-6,000rmb [£470-570] a day. We didn't see any of the money. The computers were never turned off."

In the Soviet Union, it was gold-mining on the Kolyma: in China, it's World of Warcraft. Surreal. However, they haven't abandoned their efforts at reforming the inmates:

He was also made to memorise communist literature to pay off his debt to society.

You can't make this stuff up. It only happens in real life.