In the recent years, intellectual property has extened its definition from
things, physical objects, to ideas.  Ideas such as placing classified ads
online or getting customer reviews on a website are regarded as one of the
most important assets a compnay might have.  These fall squarely outside the
traditional definition of intellectual property.  Someone owning the idea of
placing classified ads online is alarming not because they did not come up
with it but because they can legally disallow others from doing the same.  In
effect, "inventions" of this soft are monopolies legalized through the patent
system.

Perhaps, more alarming are the patents dealing with new lifeforms and genome.
OncoMouse is a mouse genetically modified to develop cancer and it's owned by
a company who developed it.  One could argue that extracting licensing revenue
from human genome and OncoMouse happens at public expense.  The owner company
effectively impedes other cancer researchers from working in the interest of
the greater public.  As the practice of science has grown more expensive, and
more commercial, so has the pressure to patent everything.

Another dangerous practice is software patents mentioned above.  Experts argue
that software patents impede innovation.  The ideas that are eventually turned
into patents don't appear in a vacuum, often they rely heavily on unpatented
ways of doing things.  This enables companies to take ideas from public domain
and convert them into their profit centers by granting them exclusive rights.
Furthermore, patenting software rewards failure because the company has likely
patented some aspect of the failed product.  This makes all the successor
companies who might have a chance of faring better a prime target for legal
suits.

Article Text:
http://www.guardian.co.uk/comment/story/0,3604,1646125,00.html

The difference between ideas and things is obvious as soon as someone hits you
over the head with an idea - so obvious that until recently it was entirely
clear to the law. Things could have owners and ideas could not. Yet this
simple distinction is being changed all around us. Ideas are increasingly
treated as property - as things that have owners who may decide who gets to
use them and on what terms.

Ideas such as one-click shopping, getting customer reviews on a website or
even putting classified ads on the internet are now patented, which is to say
that somebody owns them - Amazon.com the first two, Google, the classified ad
patent - and anybody else who wants to make use of them must pay a rent to the
owner. Last week, Amazon was also granted a patent that covers getting
shoppers to review the things they have bought on its website. BT has tried to
patent the hyperlink, Microsoft is trying to patent XML, a way of writing
computer files that is fundamental to the operation of modern business.

The fight over the human genome and its patenting - and over the patenting of
drugs - is another, and perhaps more familiar front in the war. Ideas are
codified as intellectual property and regarded as among the most important
assets a company can own. As where things are made becomes less important in
the formerly industrialised nations of the west, the real value comes in the
licence to allow others to make them.

Even facts about the world can, in some cases, become the property of
commercial companies. It was the promise of gaining patents on the human
genome that lured investors into the private consortium that attempted to
sequence it in competition with the public effort. Laboratory animals have
already been patented, starting with the OncoMouse, an animal whose genome has
been manipulated to ensure that it develops cancer.

Science was one of the first fields in which the confusion of ideas with
things became apparent and damaging. It has always been one in which ideas and
techniques were freely shared. You might say that any scientific experiment is
worthless until it has been copied - if it can't be repeated, it isn't
scientific. Scientific papers, too, measure their influence by how often they
are copied or quoted in others. But as the practice of science has grown more
expensive, and more commercial, so has the pressure to patent everything. The
public project that sequenced the human genome, led by Sir John Sulston and
Bob Waterston, defined itself as in opposition to patenting data. This wasn't
just an idealistic stance. They were convinced that without freely available
data the work would flow less swiftly, if at all, and that the results would
be very much less useful. In fact, the so-called private project run by Craig
Ventner used a method that relied on the availability of publicly sequenced
data as a springboard for the short cuts it took.

Sulston now, after his Nobel prize, spends much of his time campaigning for
public access to scientific knowledge and its fruits. In a world where
material goods are so unevenly distributed, the effort to lock up ideas and
intellectual riches as well seems to him quite monstrous. The struggle over
patents in science and technology is usually presented as one between rich
countries and poor ones, with big pharmaceuticals on the one side and almost
everybody in the world on the other. It is certainly true that the
governments, the peoples and the industries of poor countries have fewer drugs
than they might otherwise have because of international patent law. But so do
the big companies themselves. It is not just the results of scientific
inquiry, like drugs, that are controlled as intellectual property. It is,
increasingly, the knowledge needed to make them or to understand how they are
made. Where scientists once worked over a safety net composed of other
scientists' experiments, they can now have the impression that they are
working over a minefield composed of other companies' patents.

In this world, size is no protection. It just makes you a more succulent
target for enemy lawyers. It is the biggest and most enterprising firms, whose
work is likely to make use of the greatest bodies of knowledge, that are most
at risk. Naturally, this has a chilling effect on the work that is done. Big
pharmaceuticals must patent everything, if only to be certain the competition
does not do it first. They may, of course, later exchange patents with their
rivals. But that simply helps to confine invention to the very largest
companies, as the smaller ones have little to trade with.

This is even more true in the software industry. The law of copyright - and of
patents - long precedes computers, which fit very uneasily into the old
frameworks. Neither copyright nor patent law is satisfactory here, but patents
on software threaten to have the most disastrous effect on the future of
programming, since only programmers can break it. In the beginning, computer
software was neither patented nor copyright. For so long as the machines had
no users, only programmers, this made sense. But in the mid-1970s, people
started to see they could make money out of software. This is not easy or
obvious, because when I make a copy of your program, you still have the
original, which works just as well as it ever did. Equally, when you make a
copy and sell it to me, it has cost you nothing, so why should you charge me
for it as if it were a limited resource? There is no answer from justice to
these questions. The only answer that makes sense is that certain arrangements
of copyright promote a flourishing market in software, which is in society's
general interest, so it should legislate for them. Without it there would be
no commercial software industry, or any way to ensure that free software stays
free.

Bill Gates first came to the attention of other hackers when he objected to
their taking his earliest Basic programming language and copying it, as they
were used to doing. He won, and Microsoft's riches rest on copyright law. But
they also depend on its constant violation. Around every legitimate,
full-priced piece of software hangs a penumbra of pirated versions. Most of
these will be converted, at some time, into legitimate purchases. But the fact
that you can use most MS software for free has been an important factor in
spreading the habit of using it and in killing competition. The companies that
make most fuss about "software piracy" know perfectly well that if it were
entirely abolished, they would be less well off.

Software patents came along later, and are much more damaging, because they
can be enforced. Copyright protects only particular program code. It does not
- crucially - protect the way that it looks and works. Nor does it protect the
clever ideas contained within it. In a world where software is only protected
by copyright, competition works like evolution - by incremental improvement.

Patenting software could stop all that. Because patents are meant to protect
inventions, they apply to ways of doing things in software. This can be
discussed as if it were real machinery, but in fact it's an idea, or an
arrangement of ideas.

The final problem with software patents is that they can be taken out on
business processes, such as Amazon's one-click buying. Here, what is protected
is not even a trick to writing programs. It is a way of dealing with
customers. That is the kind of innovation the market is meant to spread more
quickly than any other mechanism. Patents on business processes obviously
deliberately slow this process down, and if clever business ideas can be
patented, why not other ideas? There is a man in California trying to patent
movie plots.

US venture capitalists now refuse to back a company until it has applied for a
patent on its business practice, which they will keep if it fails, as most
startups must. If this practice continues, the chilling effect for the future
is obvious. The first company into almost any field will fail. But if it
leaves enough patents behind it, these may strangle all its
successors. Patenting ideas rewards failure and makes success more
difficult. You can't argue that they are needed as incentives. Bill Gates made
his fortune in a world without software patents - and if that's not big enough
to act as an incentive, nothing is.

There is some evidence that patenting has not slowed down research into
genomes, simply because researchers ignore them. But they are impossible to
ignore in software, partly because the laws governing infringement are so
drastic. The directors and board members of any company found guilty of patent
infringement are liable to triple damages, personally as well as
corporately. So companies that may infringe patents simply can't be sold until
the patent holders are bought off, and this is almost always easier and
cheaper than fighting the patent, no matter how worthless. This gives the
holders of patents tremendous powers of extortion. The only defence is for
everybody to do it, which still further clogs up the system.

For most people these concerns may seem abstract - at least until they listen
to music, where arguments about ownership are fought over all the time in the
courts and, increasingly, inside the gadgets that we use. Only last week, Sony
was forced to withdraw software concealed on some of its CDs that installs
itself - without the owner's knowledge or informed consent - on a computer,
prevents copies being made and breaks the machine if an attempt is made to
remove it. At least 47 recent CDs have been infected in this way, and one
recent survey suggests that they in turn have infected half a million PCs
during the last three months. Any PC thus infected can be attacked by more
obviously malevolent hackers who can use the Sony technology to install their
own programs on the victims' PCs. But whether it is Sony or some Russian mafia
gang that ends up working through these security holes, it won't be you, the
poor sap who thought he/she owned the computer and had bought the music.

Legally, of course, we don't buy music, any more than we buy software. We
agree to buy certain, limited rights, which vary from country to country but
which have all been routinely disregarded until very recently.

In the US, for instance, it is illegal to copy your own CDs on to your own
iPod. Obviously, this is a law that is broken all the time, or nobody there
would ever buy an iPod. The 60GB model sells for $350 (£200); to fill it up
with freshly downloaded content from the Apple store could easily cost another
$25,000.

Just as with computer software, the legal market has broken down because there
is no obligation for buyer and seller to agree on a price, or even on what is
being sold. Computers have made it possible for both sides to cheat on their
agreements. Buyers can use some forms of file sharing and sellers can write
ever more restrictive licence agreements to make it clear they are not selling
anything, merely renting it out. There are some download services where the
music you have already downloaded will no longer play if you stop your
subscription. The obvious answer is to pay for it with money similarly
protected - special digital rights money, which would vanish, like fairy gold,
when you stopped playing with the new toy. Nobody would accept payment on
those terms. Why are there companies which think the opposite is fair?

The answer is that they are operating in a climate where intellectual property
seems to guarantee an endless, effortless stream of money to its owners. The
big content owners have been determining the world's intellectual property
regimes for the last few decades. By clever lobbying at extraordinarily boring
conferences, they had managed by the late 90s to commit governments, through
the world trade talks, to a draconian programme of laws extending the notion
of intellectual property to the point where a Norwegian teenager can be
threatened with jail when he writes a clever programme to let him watch DVDs
on his own computer - because he is said to be providing tools to steal
intellectual property.

This is madness. Ideas aren't things. They're much more valuable than
that. Intellectual property - treating some ideas as if they were in some
circumstances things that can be owned and traded - is itself no more than an
idea that can be copied, modified and improved. It is this process of freely
copying them and changing them that has given us the world of material
abundance in which we live. If our ideas of intellectual property are wrong,
we must change them, improve them and return them to their original
purpose. When intellectual property rules diminish the supply of new ideas,
they steal from all of us.