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The Consequences of IP: Apple and SOPA

-- By SpencerWan - 07 Jan 2012

The traditional rationale for intellectual property law is that it promotes innovation and it gives artists, musicians, and inventors an incentive to produce work. However, as we discussed in class, that rationale and thus the need for intellectual property law is decaying rapidly. In fact, the current laws have created a system in which innovation is stunted and distribution segmented. I will examine two current affairs to elucidate how the current state of intellectual property law is holding society back from innovative goods and efficient distribution.

THE PATENT WARS

Over the past couple years, the giants of communication manufacturers have been exchanging patent infringement claims and counter claims against each other over the uses of patented technology, and Apple has been at the epicenter. Apple has been involved in lawsuits and other claims with Nokia, Samsung, and HTC over the iPhone, and with Motorola and Samsung over the iPad. Most recently, Apple successfully defended a claim against it from HTC in an attempt to ban the import of the Apple iPhone.

As evidenced by these multi-million and billion dollar claims, the patent has become one of the most if not the most important asset a corporation can have. Because patentholders are afforded monopolies, owning patents, defending patents, and creating patents are integral to the business model. However, the result of patent wars are detrimental to technological innovation. The internet was created to be open and free for anybody to access. The idea was that open access would ultimately create a better product that is optimized to fit the needs since whenever a need or problem would surface, anybody could fix it. Now with patents dominating the technology industry, every big player relies on patents to secure its market share. This leads us to these patent wars which uses an endless amount of resources devoted to winning these battles in court. These resources should be better utilized in developing new technology or improving existing technology. Moreover, the incentive to patent a fetal idea even before the invention is complete is so high because of the major payout from owning a patent. The patentholder need not have a feasible way of creating a product, but having the patent is as good as having the product itself. This can lead to situations where potential innovation is kept unfulfilled because its in the hands of an owner who has no means to create it. Another possibility is new technologies are blocked because some part of it, integral or not, is under another party's patent.

PROTECT IP?

The Stop Online Piracy Act (SOPA) is currently awaiting vote in the House of Representatives. If SOPA passes into law, it would allow the Department of Justice, but more importantly copyright holders, the power to request court orders to stop the infringement. The court orders can range from barring advertisement and third-party payment services from doing business to requiring Internet service providers to block the sites entirely. The result of this legislation would be a muzzle on the freedom of the internet. It would give copyright holders to power to shut down entire sites without a neutral finding that the site was infringing any rights.

Supporters of SOPA argue that the law is necessary in order to protect the movie and music industries and to prevent online piracy through off-shore sites like www.piratebay.org. However, this law allows a lot of room for abuse since copyright holders can assert their rights on any site. Fortunately, there has been a lot of opposition to the legislation. Recently, there was a video of Al Gore on Youtube in which he spoke out against the legislation. Also, the NetCoalition? , a group made up by some of the internet giants such as Amazon.com, Google, and Facebook, has stated that they do not support the legislation and even threatened to go dark in protest of SOPA.

But the current mainstream way of thinking about the piracy issue is misplaced. The bottom line is that the reality of the situation is that piracy cannot be prevented. People will find ways to share their books, music, and movie. When Napster was shutdown, people found other methods to share their music. Likewise, there will be alternatives to the current way of sharing. Moreover, not only will the legislation fail to work effectively, it is infringing on the fundamental right of freedom of speech on the internet and is inherently a shackle on our liberty.

CONCLUSION

What current intellectual property law has created is a system where the rich and those who have fight tooth and nail to suppress the have not's. Software patents have curbed and will continue to curb technological innovation in all industries. Copyright law has kept the movie and music empires thriving while depriving millions around the world from access to books and art. Current intellectual property law needs to be reformed or even eliminated, not protected.

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MatthewLadner

Spencer, this is an interesting premise and it obviously touches on some of the central themes from our class. That said, I'm a bit confused by two of your points:

(1) You argue that the "reality of the situation is that piracy cannot be prevented" and it is therefore a waste of resources to attempt to combat it. But, this is true of many forms of conduct that we generally agree should be unlawful. For instance, people will always murder, steal, defraud, etc. And, it surely costs a lot to address this conduct. Nevertheless, laws prohibiting this conduct are still on the books and serve valuable (indeed necessary) purposes. Another example: drugs. No one seriously argues illicit drug use and distribution can be totally eradicated, but we still have rigorous drug laws. True, there's a serious argument that some currently illegal drugs should be legalized, but (a) I don't think a particularly sound argument in favor legalization is that "people always find ways around the law so get rid of the law," and (b) legalization of drugs--like the eradication of intellectual property--is not costless. You need only ask people who destroyed their own lives (the ones who are still alive, of course) or witnessed drug addiction in others to understand why. I'm not arguing for or against a change in the currently intellectual property regimes. Rather, I think you should address this weakness--just b/c people will find a way to do X doesn't mean it's a waste of time or resources trying to prevent X.

(2) You argue that intellectual property is essentially a tool of the rich that denies access to millions. First, isn't is possible that intellectual property rights protect and reward creators who aren't part of "those who have" (as a sidenote, I'm not sure what "those who have" means--are you referring to successful artists and authors, companies like Apple and Microsoft, musicians who although not "rich" still make a comfortable living by performing and selling their copyrighted works, all of the above, none of the above? ). If a particular creator wants the masses to have unfettered access to his or her work, he or she doesn't need to copyright or patent the creation in question. On the other hand, an artist starting out may have an interest in ensuring that he or she receives a reasonable return on a creation that took tremendous investment of time, energy, and often money. Second, it's true that intellectual property rights exclude some people. But, why is exclusion bad? Does every person have the right of access to every work, invention, song, book, etc. ever created? Maybe, maybe not. I think there's an argument on each side, but, you just assert one side is true. Furthermore, where are the consequences of (or even examples of) this mass exclusion? Again, I don't doubt it's occurring, I just think some examples and a discussion of its scope would be helpful.