Copyright Act of 1790

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Perverse Incentives created Patent Trolls

Stack Exchange Q&A site proposal: CopyrightX

Rackspace is one among many businesses to have recently been attacked by the patent trolls that Kirby Ferguson talked about in Everything Is A Remix.

Fortunately for all of us, they are standing up for themselves (and for everyone else too) by fighting back. It’s a costly battle, but I’m delighted to see them stepping up. If you can afford it, then please contribute funds to them so they know we appreciate their having chosen the more costly road in service of the common good.

Patent and copyright laws are both in serious need of radical reform in the US and globally, and I thank Rackspace for not caving in to the patent trolls, but as they wrote, it has become a never-ending game of whack-a-troll.

That’s because with existing legislation, the patent troll business model is financially very sound if also inherently corrosive to society as a whole. “The dynamics of local vs. global optimization” is jargon from the team-building and process-design communities that applies here: a successful business strategy for the patent trolls is a huge failure for the community as a whole. This could also be considered a perverse incentive.

There are perverse incentives in both copyright and patent law that undermine the original Constitutional goals of “promot[ing] the Progress of Science and useful Arts…” that are especially powerful in our age of ever-increasing innovation where digital computers and The Internet have created a radically different “landscape” than that which existed when the first such laws were drafted.

Ideally, thoughtful legislative reforms would prevent such perverse incentives in the future so that both copyright and patent law would once again be aligned to serve the common good rather than the good of a few.

Alan Schoenbaum (Senior Vice President, General Counsel and Secretary for Rackspace) wrote the aforementioned blog post and in doing so, quoted Joel Spolsky: “Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.” This is a great segue, for large and democratic communities (such as those Joel Spolsky helped create with full of good questions and answers could go a long way towards helping to craft such thoughtful legislative reforms. See Ask Patents for such a community on patents, and CopyrightX for such a proposed community on copyright.

Anyone who feels strongly about these issues, please go get involved by “Follow”ing the proposed CopyrightX community and submitting 5 Example Questions. If you need help coming up with good Example Questions, see Prof. Fisher’s CopyrightX lecture on the music industry for some ideas. With enough voting and other participation, the CopyrightX community proposal can graduate to an actual community like Ask Patents.

And with two vibrant communities full of good questions and answers related to IP law, perhaps future legislation will be free of perverse incentives, and we can once again rely on our laws to serve ALL of our best interests.

In the interim, thanks again Rackspace for being willing to continue the costly game of whack-a-troll on behalf of all of us.

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