Judge decries "excessive" copyright and software patent protections

Influential judge and legal scholar argues that "major reforms are necessary."

by Timothy B. Lee

Richard Posner, the federal judge who threw out the entire Apple v. Motorola patent battle in June, has penned a new blog post complaining about the proliferation of patents. "I am concerned that both patent and copyright protection, though particularly the former, may be excessive," Posner wrote on Sunday.

The problem of excessive patent protection is at present best illustrated by the software industry. This is a progressive, dynamic industry rife with invention. But the conditions that make patent protection essential in the pharmaceutical industry are absent. Nowadays most software innovation is incremental, created by teams of software engineers at modest cost, and also ephemeral—most software inventions are quickly superseded. Software innovation tends to be piecemeal—not entire devices, but components, so that a software device (a cellphone, a tablet, a laptop, etc.) may have tens of thousands, even hundreds of thousands, of separate components (bits of software code or bits of hardware), each one arguably patentable. The result is huge patent thickets, creating rich opportunities for trying to hamstring competitors by suing for infringement—and also for infringing, and then challenging the validity of the patent when the patentee sues you.

On the copyright front, Posner sees two major problems. One is excessive copyright terms and the resulting "orphan works" problem. "Apart from the fact that the present value of income received so far in the future is negligible," he writes, "obtaining copyright licenses on very old works is difficult because not only is the author in all likelihood dead, but his heirs or other owners of the copyright may be difficult or even impossible to identify or find."

Posner also called for broader fair use rights. "The boundaries of fair use are ill defined, and copyright owners try to narrow them as much as possible, insisting for example that even minute excerpts from a film cannot be reproduced without a license." That's a problem, he argues, because "intellectual creativity in fact if not in legend is rarely a matter of creation ex nihilo; it is much more often incremental improvement on existing, often copyrighted, work, so that a narrow interpretation of fair use can have very damaging effects on creativity."

"The need for reform is less acute in copyright than in patent law," Posner concludes, "but it is sufficiently acute to warrant serious attention from Congress and the courts."
An influential loose cannon

Posner is not a typical judge. While most judges mostly keep their opinions to themselves when they're not on the bench, Posner is a prolific academic and public intellectual. He is regarded as a founder of the law and economics movement, which brings economic analysis to bear on legal doctrines. He has written numerous books, and he shares a blog with fellow University of Chicago scholar (and Nobel prize-winning economist) Gary Becker.

Posner is also something of a loose cannon. Last year, for example, we covered his remarks from the bench that a constitutional right to record the police would lead to "a lot more of this snooping around by reporters and bloggers." The copyright scholar (and sometime Ars contributor) James Grimmelmann called one of Posner's recent opinions in a copyright case "astonishingly slipshod, even by Judge Posner’s relaxed standards." He is traditionally regarded as a conservative, but he commented in July that "I've become less conservative since the Republican Party started becoming goofy."

And Posner's seat on the Seventh Circuit Court of Appeals doesn't give him a direct role in shaping patent policy because (as we discussed yesterday) the Federal Circuit Court of Appeals has exclusive jurisdiction over patent appeals. Posner was able to hear the Apple v. Motorola case because he was temporarily sitting in as a trial judge. But his rulings will be reviewed, and quite possibly overturned, by the patent-friendly judges of the Federal Circuit.

But while Posner doesn't have the power to directly change patent law, he is widely known and respected both in academia and the judiciary. So his views are likely to have an impact on how policymakers—perhaps including Supreme Court justices—view patent law and policy.