Talk:Storyline and fashion patents
todo
Someone recommended this, but I haven't watched it yet:
Ciaran 04:30, 29 June 2011 (EDT)
- Summary (it's almost entirely about the absense of copyright): Jose X 21:31, 12 April 2012 (EDT)
- [2:00] "Now the reason that the fashion industry doesn't have any copyright protection is because the courts decided long ago that apparel is too utilitarian to qualify for copyright protection."
- [2:30] "Now those of you who are familiar with the logic behind copyright protection, which is that 'without ownership there is no incentive to innovate,' might be really surprised by both the critical success of the fashion industry and the economic success of this industry. What I am going to argue today is that *because* there is no copyright protection in the fashion industry, fashion designers have actually been able to elevate utilitarian design, things to cover our naked bodies, into something we consider ..art!"
- This appears to be a discussion mostly against copyright in order to increase the level of creativity in the industry. It talks of the value to established designers of remixing and being inspired by others' remixes and being able to copy at will. It covers differences in materials and markets being different so there is a need for cheap imitations. It talks about being kept on your toes as a creative designer. It talks about lots of money being made in the industry.
- It also references (as also not having copyrights) comedy, food industry, tattoos, perfume odors, magic tricks, and basically many physical product looks.
- It considers countries where copyright protection exists. High bar in Japan leads to few getting protection. Low bar in the EU leads to making it very easy to circumvent. I think these are cases of very specific protections and quite unlike broad patents.
- The presentation doesn't cover patents much, but it supports the idea that patents may not be necessary for generating money [eg, see 12:20] and can actually lead to resting on laurels and stifling other those who have limited ideas from which to borrow.
- I don't think the presenter claimed to be describing research. It's probably mostly anecdotal.
- This video could be used to address concerns of those who want strong IP protection fearing they need it to make money. Eg, http://endsoftpatents.org/resources-for-computer-scientists "Shouldn't I have legal control over my creative work?" Obviously, many individuals without patents get paid. They get paid for their time (as is true for most workers on the planet) and their works serve as evidence of their expertise, creating market demand for their time and skills.
references to paragraph on likelihood literary patents would be unconstitutional in the US
As concerns the 3 reference placeholders:
The first sentence was intended to be supported by the rest of the paragraph. There might be an article or work that can be referenced to support that statement, however.
The second I'll try and look for. I have quoted from at least 2 SCOTUS rulings in the past that I think cover that. I think Bilski does.
For the third reference, are you looking for a link to fair use in copyright http://www.law.cornell.edu/uscode/text/17/107 and its absence in patent law?? Alternatively, google "fair use in patents". Not sure which link would be authoritative, but there are titles like "It's Time For Fair Use In Patent Law" or this paper http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1005650 "Toward a Doctine of Fair Use in Patent Law" . Note that the missing independent inventor defense is sort of implied by either "first to invent" or "first to file". There is no "first to xxx" for copyright [I'll see if I get a ref to this effect since this has been argued before in courts.]
Update: I was not able to find decent support for that second paragraph with the missing citations http://en.swpat.org/wiki?title=Storyline_and_fashion_patents&oldid=32279#In_the_USA , so I removed it. Analysis like this http://writ.news.findlaw.com/commentary/20030120_sprigman.html made me a little depressed, realizing (again) that my interpretation is not necessary the Courts' interpretation.Jose X 20:41, 12 April 2012 (EDT)
- The first sentence is a very big claim, probably overly confident. It should be backed up with references to constitutional law experts, or more likely just toned down: Storyline patents may encounter problems with articles X and Y of the US Constitution, as described in this ruling: [...]. (?)
- I decided to drop the paragraph, but I'll say that research does seem to support that promoting the progress (which is written right into the Constitution) has not been proven and likely is completely false in important cases, for example, in [[1]] when we contrast to things like FOSS and CC. While the Eldred analysis I linked above is depressing, Lessig did say he did not much hit on the promote the progress angle. Of course, this storyline page already links to those research papers and you clarified they apply to software. [some of that research applies to any patent type and to other forms of IP]
- For the second, I don't remember a part of Bilski that could back it up. What study or legal expert has said that patenting storyline ideas would be more problematic (excessively binding) than chemical ideas or software ideas?
- No, nothing isolating storylines in contrast to sw. Anyway, I linked to the section about "intangibles" as a common point between stories and sw.
- For the third, which supreme court ruling are you referring to? And why is the talk of copyright relevant? (Did a court say that copyright is the maximum level of restrictions allowable? And therefore if patents are more restrictive, they couldn't be allowed?)
- Mostly that is my interpretation perhaps, and that is the main reason I decided not to keep googling and just drop the paragraph. Historically, what is patentable is not copyrightable. The justices in Bilski expressed significant skepticism about business method patents for that reason. Storylines would fit that pattern. Fair use was added as a natural restriction by the courts. It stands to reason perhaps that if the court found it a natural exception to a monopoly on writing and expression, then there should exist fair use for patent law if patent law was applied to writing as well. Without this fair use (and recognition of independent invention), patents are a stronger form of exclusivity -- why would the court not think a fair use should apply as well?
- In short, it would be best to focus on quoting the court rulings and the writings of experts, and note our hopes/conclusions only in smaller comments. Ciaran 20:14, 12 April 2012 (EDT)
