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Even experts get it wrong

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Re: Even experts get it wrong

#131

Post by radarsat1 »

lutorm wrote: post #114
radarsat1 wrote: post #71

Earlier quoted context omitted.

> It isn't property, I can't hold on to it, I can't touch it, and I can't steal it. You don't have any right to an idea over any other human. This is an abstract construct which attempts to create an artificial commodity where there isn't one. Apart from "holding on to it," what you say in the quote sentence is true for pretty much any property. In a strict sense, property is what you can defend. However, in order st…

I think we should be careful about the word property. In the case of copyrighted works, you do not own the work , you own the copyright to it . In the same way with patents, you don't own the patented idea , you own the patent . Both of these are abstract constructs that means society gives you certain rights, but do not extend ownership to the ideas. This is plainly obvious with regards to copyright since the fair u…

I agree with everything you just wrote, so if I came off as contradictory it means I wasn't clear about something. When said "government says," obviously it was a bit of hyperbole, I really meant that citizens and government agree on a set of rights, pursuant to certain goals we have as a society, and how they should be distributed. Of course there are subtleties that I tried to gloss over, such as owning a patent vs. owning an idea---I was just trying to emphasize the fact that even ownership of material property is such a right, based on agreement, and is basically already an abstract concept, and therefore consistent with other forms of ownership that may seem more abstract.

Re: Even experts get it wrong

#132

Post by DougBTX »

anamax wrote: post #124
DougBTX wrote: post #67

Earlier quoted context omitted.

> Patent infringment consists of using some technique without the permission of the owner. There are different punishments for patent infringement with and without intent, so by definition you can have patent infringement without intent.

> There are different punishments for patent infringement with and without intent, so by definition you can have patent infringement without intent. Nope. There's just a more serious penalty when you continue after being informed.

Here's the section from UK law, you could look up a similar section in your jurisdiction:

when awarding damages ... take into account the following – (a) whether at the date of infringement the defendant or defender knew, or had reasonable grounds to know, that he was infringing the patent ...

(That's paragraph 62 (3)(a) from http://www.ipo.gov.uk/patentsact1977.pdf )

Seems quite clear cut.

Could you explain what you understand by "intent"? Do you think you can have intent to infringe a particular patent without knowing that the particular patent exists?

Re: Even experts get it wrong

#133

Post by dllthomas »

anamax wrote: post #125
dllthomas wrote: post #64

Earlier quoted context omitted.

I intend to implement things I invented all the time (usually fairly trivial things, undeserving of patents). Many of them have probably been invented before, but because they are trivial, I am not infringing anything. If one of them happened to be slipped by the patent office, now I am infringing. Would you say that I intended to violate the patent? Is it incumbent on me to read every single patent granted and make…

> Is it incumbent on me to read every single patent granted and make sure I'm not doing anything that might use any of them? Basically, yes. > Over 40k software patents are granted each year. If I spend 20 minutes on each (which is optimistic), it will take me a year and a half to read a year's worth if I do nothing but read 24x7. Obviously, expecting me to keep up on that and still do any development is absurdly unr…

Alone, ignorance of the law is not a good excuse. However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.

Re: Even experts get it wrong

#134

Post by dllthomas »

anthonyb wrote: post #127
DanWaterworth wrote: post #121

Earlier quoted context omitted.

Also, I'm not a lawyer, so correct me if I'm wrong, but isn't it also patent infringement if the following happens: A patent is filed for technique X by company A, Company B use technique X having created it independently, The patent is issued to Company A, Company B is now infringing upon Company A's patent. Company B could not possibly have committed patent infringement intentionally, because the patent they infrin…

Not sure in that case. If B can prove that they were using it first, then it's possibly prior art (or else obvious) and A's patent may be invalidated.

IANAL, but I believe that's only true if B was using it before A filed. The order described was "A files, B re-invents, A's patent is issued". It may have some weight in arguing that the invention was obvious, but my understanding is that this is harder than invalidating a patent based on prior art.

Re: Even experts get it wrong

#135

Post by SilasX »

belorn wrote: post #122
SilasX wrote: post #120

Earlier quoted context omitted.

Another example is stock ownership, i.e. partial, tradeable ownership of a venture. No, you can't hold it in your hands[1], but people understand that it's property in all the relevant senses and can be meaningfully said to be "stolen" (e.g., if the votes you make with your shares are ignored). [1] The stock certificate doesn't count; that's a representation of the property, not the property itself.

The stock certificate does count: 1) Its legal tender, 2), if you loose the certificate then you loose the property. Its like trying to argue that money are not property, just representation of property.

Wait, what? Most exchanges and corporations don't even go by a paper certificate, proving my point: shares (and money, for that matter), are defined by a relationship, not a physical instantiation. If you lose a certificate (if they even still issue them), there are still records of how many were issued, and of when they were transfered to you. As long as that history can be reconstructed, you are still given the voting/dividend rights, and if you aren't, it's lawsuit time.

Same thing with contracts: a contract is a relationship. The signed piece of paper is not the contract, but proof that a contract exists.

It's just a case of Procrustean bedding to act like all property (or rights bundles isomorphic thereto) must be physical.

Re: Even experts get it wrong

#136

Post by michaelcampbell »

SilasX wrote: post #135
belorn wrote: post #122

Earlier quoted context omitted.

The stock certificate does count: 1) Its legal tender, 2), if you loose the certificate then you loose the property. Its like trying to argue that money are not property, just representation of property.

Wait, what? Most exchanges and corporations don't even go by a paper certificate, proving my point: shares (and money, for that matter), are defined by a relationship, not a physical instantiation. If you lose a certificate (if they even still issue them), there are still records of how many were issued, and of when they were transfered to you. As long as that history can be reconstructed, you are still given the vot…

> Most exchanges and corporations don't even go by a paper certificate,

Except the ones that do. You're right; most don't by default, but if you DO have valid paper certificate, it is a bearer instrument. Who owns it, owns it.

Re: Even experts get it wrong

#137

Post by SilasX »

michaelcampbell wrote: post #136
SilasX wrote: post #135

Earlier quoted context omitted.

Wait, what? Most exchanges and corporations don't even go by a paper certificate, proving my point: shares (and money, for that matter), are defined by a relationship, not a physical instantiation. If you lose a certificate (if they even still issue them), there are still records of how many were issued, and of when they were transfered to you. As long as that history can be reconstructed, you are still given the vot…

> Most exchanges and corporations don't even go by a paper certificate, Except the ones that do. You're right; most don't by default, but if you DO have valid paper certificate, it is a bearer instrument. Who owns it, owns it.

Which is to say, that the physical piece of paper is not a defining characteristic of property in stocks (even one case would mean that paper is not inherently part of stock ownership), just as physical stuff is not necessary in many other kinds of property.

Re: Even experts get it wrong

#138

Post by CodeMage »

repsilat wrote: post #129
CodeMage wrote: post #92

Earlier quoted context omitted.

Laws are not about dictionary definitions or personal interpretation. They are a formal specification and that formality is what we call "legalese". I'm not a lawyer, so I would probably mess up the explanation, but fortunately I saved the link to it, so you can read it straight from the lawyer who explained it right here on HN: http://news.ycombinator.com/item?id=3696526

When people call copyright/patent infringement "stealing" or "theft" they usually don't mean to invoke the legal definitions of those words. The fact that this conversation occurs so often should make it clear that there are a number of people whose personal idiomatic definitions of those words include "illegal getting-of-things". People are entitled to their personal definitions, and the fact that the legal definiti…

When people call copyright/patent infringement "stealing" or "theft" they usually don't mean to invoke the legal definitions of those words. The fact that this conversation occurs so often should make it clear that there are a number of people whose personal idiomatic definitions of those words include "illegal getting-of-things".

I think you're looking at it backwards. The fact that this conversation occurs so often makes it clear that there is quite a lot of people who are aware "theft" is an incorrect term for it.

The way I see it happen usually is that these people point out that infringement, unlike theft, doesn't take away some physical property and isn't a simple zero-sum act (as in, if I steal 10 dollars from you, you have 10 dollars less). The next thing that usually happens is that the answer is something along the lines of "but it's still wrong" and/or "you're just splitting hairs".

That's why I brought JackC's explanation into play: he explains the real difference between theft and infringement, without sliding into legalese, and he also explains why it's so important.

People are entitled to their personal definitions, and the fact that the legal definition is different is immaterial. When a reckless driver crashes their car into a kid, the kid's mum calls the driver a "murderer", and we don't consider them "wrong" (because the guy's crime is actually called "vehicular manslaughter".)

I strongly disagree with this. The reason why people protest that infringement is not the same as theft is precisely because they feel that the legal definition matters.

The people who point out difference between theft and infringement don't do so because their argument is "Infringement is not theft, so it's okay." (Or at least I don't know anyone dumb enough to try that.) They do it because they know that infringement is at the very least legally wrong and they want to get the emotional coloring of the word "theft" out of the picture, so that people can finally settle down to discuss whether the laws governing infringement need to be changed or not.

Incidentally, I believe that a lot of people would consider "the kid's mum" from your example wrong, but that doesn't mean they claim that the reckless driver is not guilty or that he should be dealt with leniently.

Now, it's fair to argue that using these defintions of "theft" is prejudicial, and that it's also fair to argue that people should refrain from that usage to minimise ambiguity, but it's not fair to argue that they should stop using a word because it doesn't agree with some "authoritative" definition (except in legal contexts, of course.)

It's not about minimizing ambiguity. It's about stopping people from misrepresenting one thing as another, so that the correct thing can be discussed. What I think is not "fair" is telling those people "Well, my definition of 'theft' encompasses 'infringement' and I don't care, because I shouldn't be held to some 'authoritative' definition."

Re: Even experts get it wrong

#139

Post by anamax »

dllthomas wrote: post #133
anamax wrote: post #125

Earlier quoted context omitted.

> Is it incumbent on me to read every single patent granted and make sure I'm not doing anything that might use any of them? Basically, yes. > Over 40k software patents are granted each year. If I spend 20 minutes on each (which is optimistic), it will take me a year and a half to read a year's worth if I do nothing but read 24x7. Obviously, expecting me to keep up on that and still do any development is absurdly unr…

Alone, ignorance of the law is not a good excuse. However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.

> However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.

While it may be absurd for our society to punish you in that circumstance, our society will punish you in that circumstance. In other words, "it's absurd" isn't a legal defense.

Ignorance of patents, like ignorance of law, is no defense, no matter how impractical knowledge is.

Re: Even experts get it wrong

#140

Post by dllthomas »

anamax wrote: post #139
dllthomas wrote: post #133

Earlier quoted context omitted.

Alone, ignorance of the law is not a good excuse. However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you.

> However, when ignorance of the law is provably impractical (impossible, in this case, for a single individual) and acting reasonably causes you to violate it, it is absurd for our society to punish you. While it may be absurd for our society to punish you in that circumstance, our society will punish you in that circumstance. In other words, "it's absurd" isn't a legal defense. Ignorance of patents, like ignorance…

This is partly true. Ignorance of patents means getting hit with damages instead of treble damages.

It is also relevant to what shape the laws should have.

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