Judge Richard Posner is calling on the US Congress to solve what he said are problems of the copyright and patent law of the country.
In a post on a blog he shares with Nobel Prize winner Gary Becker, the judge identified what he sees are the main problems of the US copyright and patent law.
One of these is what he said is an “excessive” amount of protection of patents and copyrights, specifically with the tech industry.
The tech industry, the judge said, is nothing at all like the pharmaceutical industry the patent and copyright law was drafted to protect. He said that the tech industry does not need this type of protection afforded by the law because it only restricts innovation.
“The problem of excessive patent protection is at present best illustrated by the software industry. This is a progressive, dynamic industry rife with invention. But the conditions that make patent protection essential in the pharmaceutical industry are absent. Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded. Software innovation tends to be piecemeal—not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement—and also for infringing, and then challenging the validity of the patent when the patentee sues you.”
Another main point the judge identified is an unsteady interpretation of “fair use”.
“The next most serious problem is the courts’ narrow interpretation of “fair use.” The fair use defense to copyright infringement permits the copying of short excerpts from a copyrighted work without a license, since the transaction costs of negotiating a license for a short excerpt would tend to exceed the value of the license. The problem is that the boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license. Intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity. This is not widely recognized.”
He said that patent law needs more attention than copyright law but he still calls on the US Congress to give attention to the latter.
“The need for reform is less acute in copyright than in patent law, but it is sufficiently acute to warrant serious attention from Congress and the courts,” Judge Posner said.
Judge Posner has previously signified that he thinks the patent system of the US needs an overhaul, particularly when he handled this Apple and Motorola case.
Image from Wikipedia (Creative Commons)