November 05, 2005

Musings on IP - one good way for DRM and one bad way?

Darren points to a great story about the development of intellectual property ("IP") - someone in the United States has apparently succeeded in applied for a patent on a unique plot line for a novel or film.

Process of relaying a story having a unique plot

Abstract A process of relaying a story having a timeline and a unique plot involving characters comprises: indicating a character's desire at a first time in the timeline for at least one of the following: a) to remain asleep or unconscious until a particular event occurs; and b) to forget or be substantially unable to recall substantially all events during the time period from the first time until a particular event occurs; indicating the character's substantial inability at a time after the occurrence of the particular event to recall substantially all events during the time period from the first time to the occurrence of the particular event; and indicating that during the time period the character was an active participant in a plurality of events.

Do we need IP control over plot lines? It is not clear to me that it helps at all as the costs of managing such seem in excess of the benefit. Unlike the filer, I don't think we are doomed to just use the same old plot lines forever because we have no incentive to innovate - the artists I know are continually experimenting on new ideas and need no additional incentives in that direction.

On the other hand they do need better systems to exploit commercially what they have made. (Don't we all?) So rather than expand plot lines to patentable ideas, why not concentrate on what we have - the better commercialisation of the property that is there?

That's what I am looking at now. Take some copyrighted material like a song. Whack a licence on it and push it out to the net. How then can we sell it?

One idea is to turn the material into some form digital contract variant - write a contract, describe the IP, add some clauses, sign, seal and deliver. (Savvy FCers will recognise the Ricardian flavour there.) Then, we could issue a bunch of these.

How does this make a market? One way is that the rights could only be exploited - used - if you have one of these in your portfolio. So if I have released a song under these licences, you'd have to buy one of these rights on the open market. Now here's the cool part: when you have finished with the song and got bored of it, you could sell it on!

The Issuer would be happy with this as pricing would then reach some sort of stability around demand. Supply could be set initially as fixed - just like editions of prints by picture artists. And, if there was a transaction fee for transfer of a few percentage points, every time the song right got sold, there would be a steady revenue stream coming into the rights holder's pot.

I can't see a flaw in this design, although I can see some arbitrary complications I skipped over for brevity. Any comments?

PS: this is not an enforced design - all this does is trade the rights, not control them. It would work for those that choose to participate. (Also, I'm not entirely sure that I'm the first person to think of it. But it doesn't seem to relate to other people's designs that I'm aware of.)

Posted by iang at November 5, 2005 01:07 PM | TrackBack

In a way, patenting a plot line might be preferable to copyrighting it, since patents still have a finite lifetime. But it's still a Bad Idea. So, I'm afraid, is your idea of perpetual license for a copyrighted creation (unless you're leaving unspoken that the copyright will eventually expire).

Spider Robinson framed what I call the Essential Copyright Refutation in Melancholy Elephants (

Posted by: Roy at November 5, 2005 02:21 PM

I got the post from ...

It was posted by Robert Michaelson to the Chemical Sources Information List

Posted by: darren at November 5, 2005 04:36 PM

Roy, Just to clarify that point, my idea does not change the nature of copyright, so while a licence might be perpetual, the copyright expires as and when it would normally.

Posted by: Iang at November 6, 2005 06:12 AM

In the story I read it was a provisional-patent application, not a granted patent. Thankfully.

Posted by: Darius Bacon at November 6, 2005 08:02 PM

Good point - correction made.

Posted by: Iang at November 7, 2005 03:24 AM

Patents in almost any new area will face quality problems -- they will tend to be vague and claim a lot of prior art. Patent examiners are trained to look almost exclusively at previous patents for prior art, but these don't exist in new areas such as fiction plots. Furthermore, patent examiners are required to be trained in some traditional area of patenting like mechanical engineering, but being trained in a new area such as business methods or literature or, until very recently, a computer science degree did not qualify you as a patent examiner. As a result examiners have no particular expertise to bring to examining patents in new areas.

Here, I strongly suspect that dastardly deeds done while sleepwalking has been done before, but not being an afficianado of such literature I can't readily prove it, nor as a literary naif do I know of any already existing "motivation" for the idea, so as an examiner I'd have to allow the patent as novel and non-obvious.

What's more, it's not clear that traditional patent criteria such as novelty, non-obviousness, and enablement even make sense for non-technological "inventions." What does it mean to enable a person skilled in fiction to successfully write this kind of plot? What does it mean for a plot, assuming it is novel, to be "non-obvious?" Who knows? Not anybody at the patent office. We could debate forever whether patent law makes sense in these areas but the only way to actually find out is through trial and error, where the cost of error to people in the target industry may be very high.

In the U.S. patents in new areas have traditionally been struck down under the "subject matter" restriction in the Patent Act. A fictional plot or bar of music would have been considered until very recently an "abstract idea" and thus unpatentable.

Just last month the Supreme Court accepted a case that deals with the subject matter issue. This could have big implications for software and business method patents as well as more adventurous patents like this one in previously unpatentable areas. See also my paper on how software came to be patented in the U.S. despite "mathematical algorithms" being an unpatentable category.

Here's an analysis of the upcoming Supreme Court case:

Here's my paper on the origin of software patents in the U.S.:

Posted by: Nick Szabo at November 8, 2005 05:04 PM
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