Bounty Hunters

Map Makers


Gold Miners

Metaphors for Designing


Intellectual Property Laws

version: 24 May 2007

Copyright 2007 Greg London

This work licensed under the CreativeCommons–Attribution license.

The following information is provided for attribution purposes:

Author's Name: Greg London

Title of Work: Bounty Hunters


email at greg london dot com

For the latest version of this work, HTML or PDF, go to:

This document was created using OpenOffice

running Fedora Linux

on a Penguin x86 PC.

18 April 2005: first public draft made available

29 April 2005: fix typos (Thanks to Robinson P. Tryon)

26 May 2005: fix typo (Thanks to Richard Eriksson), remove CC images to reduce bandwidth load, use compressed JPEG image to reduce bandwidth.

2 April 2006: fix links to Bruce Lehman's bio that had changed. Added some court cases to “external links” section, changed proposed term solution to 42 years instead of 40 years.

21 October 2006: change character names in story to avoid misunderstandings with initials.

10 November 2006: fixed numerous typos (Thanks to Ira Snyder, Chris Meadows, Jonathan ( and

5 December 2006: fixed typos, also trying to fix image resolution mismatch (Thanks to Stacey Sheldon)

24 May 2007: add reference to 56 year terms up to 1976.

Table of Contents

1 What Should Be? 5

1.1 “What incentive systems should exist in the world?”- Bill Gates 5

1.1.1 “Systems” 6

1.1.2 “Incentive” 6

1.1.3 “Should” 6

1.2 Models and Metaphors 6

1.3 Cake Cutting 7

1.4 A Model / Metaphor for Intellectual Incentive 7

2 A Town that Never Was 9

3 Art Imitates Life 24 Intellectual works are abstract ideas created by the labor of human minds. 24

3.1 Wild Frontier 24

3.1.1 The First Outlaw 26

3.1.2 The Hostage Scenario 26

3.1.3 The First Bounty on Earth 27

3.1.4 Measuring Success (Catching the Bad Guy) 28

3.1.5 Winner Take All 30

3.1.6 Cutting Cake for Bounty Hunters 31

3.2 The First American Bounty 31

3.2.1 Isaac Preston pays a visit to Mayor Maddox. 32

3.2.2 The Bounties Keep Going Up 33

3.2.3 An Immortal Mouse 34

3.2.4 The Argument Against Life Plus N 36

3.2.5 Resetting the Bounties, The Ideal Goal 38

3.2.6 And if 42 isn't the answer, how about 56? 41

3.3 Galen's Trust and Copyleft 41

3.3.1 The Hostage Scenario 43

3.3.2 An Alternative Incentive System 44

3.3.3 Galen's Trust Competes with Preston Corporation 46

3.3.4 The Halloween Documents 46

3.4 A Metaphor for Copyright and Patents 47

3.4.1 Map Makers and Miners 48

3.4.2 Progress: Expanding the Known Universe 49

3.4.3 Map Makers are Writers 50

3.4.4 Miners are Inventors 51

3.4.5 Copyright Versus Patent 52

3.4.6 Gold On the Ground 54

3.5 Patenting Language 56

3.5.1 Starting the Slippery Slope 57

3.5.2 Land Grab 58

3.5.3 Linux Competes with Microsoft 60

3.5.4 Mute Patents 61

3.5.5 Software Patents: Bounty Hunters Setting the Bounties 62

3.5.6 An End to Software Patents 63

3.5.7 Impeding Progress with Language Patents 64

3.6 Digital Millennium Copyright Act 66

3.6.1 The Case For the Anti-Circumvention Clause 67

3.6.2 The Case Against the Anti-Circumvention Clause 68 It doesn't work 68 It Isn't Needed 69 It Kills Fair Use 69 It Creates Patent-like Powers Without the Mess 69 It Has Stunted Independent Research 71

3.6.3 An End to the Anti-Circumvention Clause 72

3.7 Bruce Lehman Gets Corporate Donations 73

3.8 Eureka's Prologue 73

3.8.1 Championing the Fight 73

3.8.2 Barn Raisings 74

4 Summary 75

5 External links 79

5.1 Bill Gates Interviews 79

5.2 The Statute of Anne 79

5.3 The Longitude Prize 79

5.4 Section 8 of the U.S. Constitution 79

5.5 U.S. Copyright Act of 1976 79

5.6 U.S. Copyright Term Extension Act 79

5.7 The Halloween Documents 79

5.8 Bruce Lehman's biography 80

5.9 Wheaton v. Peters (1834) 80

5.10 Atlantic Works v. Brady (1883) 80

5.11 Graham v. John Deere (1966) 81

1 What Should Be?

In January 2005, Bill Gates had an interview with CNET that included the topic of Intellectual Property (IP) reform. At one point, Bill Gates made a reference to communists. Many reformists became upset, thinking Gates was calling them communist. Later that same month, Gates had an interview with Gizmodo, and the “communist” remark came up in the discussion. Gizmodo asked Gates to clarify his previous comment. Gates replied:

“No, no, no. I didn't say those people were 'communists.' I did say that they're...”

Up to this point, it's all pretty standard. Gates denies any wrong doing. He's about to clarify what exactly he did say IP reformists were, but then he seemed to realize at the last moment that there was no cheese down that tunnel.

Gates then stops, and starts from a new approach. He asks a question that completely changes the topic.

What incentive systems should exist in the world?” -- Bill Gates

And when I read it, I said “yes, that's exactly it.”

This is an exceedingly important question that keeps getting asked over the centuries of copyright and patent law evolution. The rights and terms for copyrights and patents keep changing over the years. Individuals with large monetary stakes in a written work often push to have the rights and durations of copyright extended in their favor. New writers and inventors complain that these large stakeholders have taken the whole pie for themselves, allowing no one to compete with them. The public seems to be stuck in the middle, wanting to reward writers and inventors, but also wanting competition to drive progress.

I was disappointed as I read further that Gates never answered his own question. And so I was left to ponder it for a while. What struck me most was the wording of the question itself. The words in the question point to an underlying truth of how things work. The question actually points to the answer.

1.1 “What incentive systems should exist in the world?”- Bill Gates

Systems, incentive, should. Three very important words.

1.1.1 “Systems”

Copyright and Patent law are components in a system of players. Individuals have an internal drive to self-interest as well as an internal drive to community-minded behavior or fair play. Copyright and Patent laws are intended to affect that system in a strategic way.

1.1.2 “Incentive”

Copyright and patent law punishes certain behaviors and rewards certain other behaviors. By providing these incentives, copyright and patent law CHANGES the way players behave.

1.1.3 “Should”

Copyright and Patent law is OPTIONAL. The system can operate without the influence of copyright and patent law, and the players will adjust accordingly. Despite dire warnings from some copyright and patent holders, the system of players is inherently stable without legal influences. Chaos will not ensue due to a lack of copyright and patent laws. Rather, players will readjust to a different point of balance.

Since copyright and patent law is optional, the question is when and how SHOULD the law be implemented. Copyright is not something the world MUST have. Copyright is optional and should only be adopted if it creates a win-win situation for the community and the creators.

1.2 Models and Metaphors

What is needed is a model or metaphor that describes the actors in the system with and without intellectual property laws in place. For a model to be useful in determining what legal incentives SHOULD be in place, it must predict what will happen without law, with varying implementations of law, and it must also be able to predict results with fair players and with unfair players.

Once you have a model, you may be able to find a generic algorithm that describes how to find a fair result. If the algorithm produces a fair result with a spectrum of players in the model, then you've found a relatively robust algorithm.

1.3 Cake Cutting

The basic cake cutting algorithm works like this: There is a cake treated as common property between two people. These two people want to find a way to cut the cake such that both of them get a fair piece. A solution is to have one person of the two cut the cake, and then allow the other person to pick which piece they want.

This is a fairly robust algorithm because it will produce a fair result under most circumstances, regardless of how selfish or selfless the actors are. The person cutting the cake has incentive to cut fairly because if one piece is noticeably bigger, the other person will naturally tend to pick that piece, and the person who cut the cake will get a smaller piece. Selfish cake cutters are given incentive to cut fairly.

But there are other algorithms that you could use to cut the cake. For example, you could have one person cut the cake and pick which piece they get. This produces a fair result only if the cake-cutter is a reasonably fair person. The model shows that this algorithm will produce an unfair result if the cake-cutter serves only their self-interest.

Another approach is to bring in a third person to act as an impartial cake-cutter, have them cut the cake, and distribute it accordingly. This is also subject to abuse when unfair players are in the system. The third person acting as impartial cake cutter is an actor the same as any of the other players, and could be filled by various people across the spectrum of selfish to selfless.

A model that relies on finding a “fair” or “impartial” individual for the algorithm to achieve a fair result is not nearly as robust as an algorithm that doesn't care about the internal drives of the players but achieves a fair result anyway.

1.4 A Model / Metaphor for Intellectual Incentive

The cake cutting system does not model all aspects of how intellectual works relate to all the different actors in the system.

So, back to Bill Gates' question: “What incentive systems should exist in the world?”

We need a model or metaphor that describes the system of intellectual works from before the works are created, to while they are treated as property, to the point where they become public domain (public property). We also need the model or metaphor to describe a system where many actors in a system design an “incentive system” for a few of the players.

The answer to this question should produce a model or metaphor that sufficiently simulates a system and allows you to predict conditions that make the system unstable, as well as design algorithms that are stable and fair and robust.

After pondering this for a bit, it occurred to me that the metaphor for this system is that of a bounty or reward offered by the public at large for any individual willing to take personal risk for a chance at successfully collecting the bounty. Writers and inventors in this system play the part of Bounty Hunters.

Before you let any preconceived notions and/or prejudices towards bounty hunters cloud your judgment, keep in mind that the same way a cake-cutting algorithm is usually used for something besides cutting cake, so too the bounty hunter algorithm isn't just used for catching outlaws.

In discussing this “bounty hunter” model to people, most thought of Boba Fett when I said bounty hunter. Boba Fett is a completely selfish bounty hunter in the Star Wars movies, a faceless, anonymous, soulless character who hunts the good guys. And with this character in mind, a lot of negative reactions were expressed towards the metaphor of writers as bounty hunters.

But to react negatively to a metaphor about intellectual property because it involves bounty hunters, is to react negatively to a cake cutting algorithm because you don't like cake. It isn't really about splitting a cake. And it isn't really about Boba Fett.

And so, I present to you a tale of a fictional town named Eureka. Eureka was founded in the frontier of the wild, wild west. And it will see bounty hunters of all types.

Afterwards, we'll look at how the metaphor applies to stuff besides cutting cake and catching outlaws.

2 A Town that Never Was

Once upon a time, there was a town by the name of Eureka. It was a good place built by honest and hardworking folks like farmers and ranchers, carpenters and masons, bankers and railroaders. Life in Eureka was good.

For a while, anyway.

It didn't happen all at once, but troubles slowly beset themselves upon Eureka in the form of organized crime, gangs, and outlaws of various sorts. Sheriff Riley had a small group of deputies that managed to keep the peace with the usual troubles that might arise between good folks who had disagreements between one another or simply too much to drink. But his group was too small to chase after bank robbers and train-robbers and cattle rustlers and horse thieves all at the same time.

Since troubles grew slowly, Sheriff Riley and his deputies focused their efforts on whoever was causing the most trouble at the time. When the Coleman Raiders robbed a string of banks, Sheriff Riley and his deputies tracked them down and brought them to justice. Same thing happened when the Farley Gang robbed several stagecoaches. It wasn't perfect, but it was good enough.

For a while, anyway.

But then Tinker Tyson and his outlaws started robbing trains. The problem was that Tinker was really good at robbing trains and really good at not getting caught. He was as smart as he was brutal. After Tinker and his outlaws robbed six trains and killed over a hundred passengers, the Morgan-Jack Locomotive company threatened to stop all train service to Eureka unless the outlaws were arrested.

Sheriff Riley was a thorough but methodical man and looked at all the places Tinker Tyson could be hiding and all the different tracks where Tinker could find trains to rob. Eureka was in the middle of a vast, untamed territory. Riley told the railroad folks he figured with 150 new deputies, he could guarantee he'd either capture Tinker or force him to move on to another city within a year.

That was no where near soon enough, and the railroad company threatened to cut all service to Eureka unless Tinker Tyson was captured within a month. And they wouldn't come back to Eureka until he was caught.

A whole year without train service would kill the city of Eureka, and the townsfolk knew it. They also knew that even if they could afford to wait a year to flush out Tyson, they could never afford 150 new deputies on the town's payroll.

Victor Clayton, one of the biggest property owners in Eureka, came forward with $25,000 of his own money as a reward for anyone who could bring Tinker Tyson to justice within a month. Clayton knew that if Eureka lost train service, he could lose everything he owned.

The Haskell brothers had heads big enough to think they could take on Tinker Tyson. Unfortunately those big heads weren't filled with the smarts enough to know the difference between causing trouble in a local bar and taking on a band of professional outlaws. Tinker decided to use them as a warning to the others and had them killed. With that, no one else seemed interested in even thinking about collecting the reward. After a week, Clayton raised the reward to $50,000.

This got the interest of a local gunslinger by the name of Garrett who knew a thing or two about trains and the people who robbed them. Garrett also knew a thing or two about the land around and about Eureka and where a train robber might hide. He loaded up on supplies and rode out of town.

After two weeks of false starts, old trails, and dead ends, Garrett tracked Tinker Tyson and his outlaws to an abandoned silver mine in the mountains. Garrett had three sticks of dynamite, a spool of wire and a plunger that he used to even up the odds a bit. The rest of it was settled with an old-fashioned gunfight. Three weeks after he left Eureka, and one day before Clayton's deadline, Garrett rode back into town with Tinker's body to collect his reward.

The people of Eureka welcomed Garrett as a hero. Clayton gladly paid the bounty knowing that he wouldn't become the largest property owner in a ghost town. Train service to Eureka continued uninterrupted. Garrett told the Sheriff about the abandoned mine and Riley decided to plant explosives and collapse it so that no one could use it as a hideout again.

John Maddox, the Mayor of Eureka, saw the benefit of having bounty hunters as a supplement to the regular law enforcement for the city. The Bennett Boys had robbed the Savings and Loans for half a million dollars six months ago and Sheriff Riley had not captured them yet. And some of the ranchers had been complaining about cattle rustlers enough for the Mayor to know it weren't all just bellyaching.

But Mayor Maddox knew the people of Eureka couldn't afford to pay the taxes needed to offer a $25,000 or $50,000 bounty. Maddox had the idea that Eureka could spread the payments out over a period of time, so that the payments were small enough for Eureka to afford it, but the total was big enough to interest someone like Garrett into getting the job done.

Maddox proposed the idea at the next town meeting. Eureka would offer a bounty of $25,000 over a period of 25 years for the capture of the Bennett Boys. Sheriff Riley thought it would be a great way to split up the work. He and his deputies could take care of the day to day business of keeping law and order. And bounty hunters could be used to take care of the random villains who fed off of the good folks of Eureka. The people of Eureka thought a thousand dollars a year was dirt cheap to get the Bennett Boys off their streets.

Four months later, Isaac Preston hauled the Bennett Boys into town and started collecting his reward.

Crime went down in Eureka, and the town grew into a metropolis. Preston and other bounty hunters collected rewards when trouble arose. As he got older, Preston formed his own company, IP Inc. Eureka had grown so big that Preston could afford to hire employees. Garrett continued working as a solo act, bringing in the occasional bad guy for a reward. Everyone was happy.

For a while, anyway.

Twenty-three years after he brought in the Bennett Boys, Isaac Preston started to get a little nervous. His annual bounty payment for the Bennett Boys would stop in two years as would two other annual payments. He had four annual bounty payments that would end in three years. And over a dozen payments he was getting every year that would dry up in four years.

He was going to have a serious cash flow problem soon. So Preston decided to pay a visit to Mayor Maddox.

“It just isn't fair, Mayor. I did all that work, risked life and limb, and brought in the Bennett Boys for a mere $25,000.”

“That was the reward offered by the city of Eureka. You didn't have to take the job.”

“Yes, but the Bennett Boys stole half a million dollars and were planning on hitting another bank when I caught them. They could have taken millions before Sheriff Riley had caught them. And I only got $25,000. It just doesn't seem fair.”

“But you shouldn't have taken the job for $25,000 if you didn't think it fair.”

“And that same year, I brought in Rex and his bunch when they were rustling cattle. Remember?”

“Sure, I re-”

“And those cattle were worth an awful lot more than the $15,000 reward that Eureka offered. Heck, the Langrie herd was over three hundred head of cattle alone!”

“But then why-”

“And the other thing is that inflation has been so bad the last few years that a thousand dollars a year just isn't worth what it was twenty-some years ago. Even if you don't increase the rewards, you should raise them just to keep up with inflation otherwise a thousand dollars a year just isn't enough.”

“Well, I don't know. I mean, what exactly did you have in mind?”

“Look, Mayor, I'm not a greedy man. I just want my due. I'll tell you what. $50,000 seems fair for saving the city what would have turned into millions of dollars of thievery and who knows how many dead folks. Don't you think?”

“But Eureka can't afford $50,000.”

“It's just another $25,000. And you can spread it out over the next 25 years like before.”

“I ... guess ... we could handle that.”

“And another $30,000 should more than cover saving a thousand head of prime Midwestern beef.”

“Thirty thousand?”

“Uh huh. The way I see it, if Eureka just doubles how long it makes its payments, then it will work out even steven.”


“Well, isn't $50,000 fair for saving the city half a million dollars?”

“I suppose.”

“And isn't $30,000 fair for saving a thousand head of cattle?”

“I reckon it is.”

“Well, there you have it then. This is really just making adjustments for inflation and bringing the rewards in line with the benefit I provided.”

“I guess I could bring it up at the town meeting next month.”

“Thank you, Mayor. I would appreciate that.”

A week later, Mayor Maddox received a campaign contribution from Isaac Preston along with a note saying “Eureka wouldn't be the same without you as Mayor.”

At the next town meeting, Mayor Maddox brought up an item concerning “inflation adjustment for bounties” and suggested that bounties need to be adjusted for inflation by doubling how long they make the payments. The townsfolk scratched their heads but figured the Mayor must know what he was talking about, and on his recommendation, they approved the measure.

Eureka continued to grow and prosper. The crime per capita continued to drop. But there were enough crimes that Preston and his company kept a brisk business of bringing in bad guys. The number of employees increased. Preston brought in his son, Irving, to work the business. Garrett, who had always worked alone as a bounty hunter, became a duo when he started showing his son, Galen, the ropes of the bounty hunter business. Even Maddox passed the torch to his son when Mitchell became the new Mayor of Eureka. Everyone was happy.

For a while, at least.

'Twas a sad day indeed when Preston and Garrett were both killed in a shootout while trying to round up the Kirby twins who had kidnapped one of Eureka's daughters. IP Inc and Garrett's son were there when it happened. The Kirby twins died in the shootout as well. The kidnapped girl was rescued, but it was the only good thing to come of that otherwise dark day.

A week later, Irving approached the Mayor.

“It's a sad day, Mayor Mitchell.”

“Yes, truly it is.”

“My pa is in the ground, and his works will follow soon after.”

“What's that?”

“Well, all the good things that my pa did for Eureka, and his rewards are gonna dry up soon.”

“You mean the bounties the city has been paying him?”

“Sure. And it just don't see right to me that he gave his life but will so soon be forgotten.”

“Forgotten? We're planning on erecting a statue in his honor. And another one for Garrett too.”

“But to give his life and to have his rewards end so soon after his death. It just doesn't seem fair.”

“Well, your pa and Garrett both knew the risks involved in trying to collect the bounty and they decided it was worth the risk.”

“Yes, but how can you put a price on a man's life?”

“Well, I'm not saying...”

“My pa devoted his life to helping Eureka. Don't you think it only fair that Eureka give him his due?”

“His due?”

“Yes, his due. He spent 50 years of his life making Eureka a better place. He should be rewarded for 50 years.”

“Your pa has gone to meet his maker. He don't care about no earthly reward. Besides, how would he collect?”

“But a man who gave his life for us should be allowed his legacy.”

“Well, like I said, the statue...”

“It don't pay for a man's life.”

“Well, I reckon it don't.” The mayor seemed stumped. “What did you have in mind?”

“50 years of a life dedicated to making Eureka a better place should be rewarded for 50 years after his death. I think it only fair that Eureka extend all its bounty payments to my father's estate for 50 years after his death.”

“That seems like an awful lot of money, Irving. I don't know if Eureka could afford it.”

“My pa gave 50 years of his life to this city, and all you can think of is the money?”

“I'm sorry, Irving, I didn't mean to be selfish.” The mayor pondered it for a moment. “I'm sure we can figure out a way to pay your father's estate.”

“Thank you mayor.”

A week later, Mayor Mitchell received a campaign contribution from Irving along with a bounty hunter's badge and a certificate that proclaimed Mayor Mitchell an honorary bounty hunter.

Mayor Mitchell called a special town meeting and gave an emotional speech about the sacrifices made by the bounty hunters Preston and Garrett. He proposed that to keep their legacy alive, their bounty awards should all be extended until 50 years from their death. The speech was a real tear-jerker.

A few folks tried to question the validity of some of Mitchell's emotional claims. Some tried to ask about the source of his campaign contributions and his status as honorary bounty hunter. A couple of independent bounty hunters said they would be willing to bring in the bad guys for the usual size bounty, that they didn't need payments for 50 years after their death. But all these nay-sayers were booed out of the meeting room. And the “Bounty Hunter Legacy Act” became law.

Galen, son of Garrett, had not been at the meeting because he was out in the mountains on the trail of a stagecoach bandit. After some time, he followed the bandit to an old shack in the hills, and there, Galen captured him. Galen hauled him back to Eureka and told the sheriff about the shack. The sheriff sent some deputies out to tear down the shack, and then he gave Galen a receipt for his reward. Galen looked at it and was surprised to see it say he'd get paid his reward for 50 years after his death.

“What am I going to do with reward money when I'm dead, sheriff?”

“You can pass it to your kin.”

“I don't have any kin. And besides, if I did and they helped me bring in this guy, I'd split the reward with them now. That's what my pa did when we rode together. I wouldn't make anyone who pulled pistols beside me to wait until after I died before they got paid.”

“Eureka passed an ordinance that all bounties are to be paid until 50 years after the bounty hunter dies.”

“Well, I set out to catch that stagecoach bandit for a lot less than that. I won't take it. Just give me the old reward.”

“The law says I have to pay you a bounty for 50 years after you die. I'm the sheriff, and I can't break the law.”

“But the town don't have to pay me that much.”

“You'll have to talk with the Mayor about making an exception.”

Galen rode over to visit Mayor Mitchell. The mayor was overseeing the construction of his new office.

“Mighty fine building you're putting up there, mayor.”

“Galen, fellow bounty hunter, how are you?”

“Fellow bounty hunter? You never had hot lead flying at you your whole life. What are you talking about?”

“I'm an honorary member only, of course. Irving even gave me a badge and certificate and everything.”

“Irving, aye?”

“Yes, sir. Good ol' Irving. He's been supporting the Mayor's office since he took over IP Inc.”

“Supporting the office?” Galen was more than a little suspect. “Or supporting you?”

“Well, the taxes his company pays is part of what's paying for this new building for the mayor's office.”

“Wait a minute. You tax the people of Eureka so that you can pay our bounties. And then you tax the bounties to pay for your buildings? Don't that seem odd?”

“It's all perfectly legal.”

“But you pass the laws around here, so you're the one making it legal. And your laws are set up so that the more Irving benefits the more you benefit, and the citizens are the one footing the bill.”

“It's all very complicated, Galen. You make it sound as if I were stealing something from the very citizens I represent.”

“You keep having the people pay bigger and bigger bounties to Irving. And then Irving turns around and uses those huge bounties to give you a big fat campaign contribution. Over in Dodge City, they call that a kickback and it's illegal.”

“Dodge City is overrun with criminals. We pay bounties that are generous enough that bounty hunters will bring the criminals off the streets.”

“Dodge City has no more crime than we do. And they pay out a lot less in bounties, which is why I came here in the first place. I don't want a bounty that lasts 50 years after I die. The people of Eureka shouldn't have to pay me that much.”

“I can't be making special exceptions for every bounty hunter that wants to negotiate a different price.”

“You did for Irving. It's just that he negotiated the price up and gave you a piece of the action.”

“Look, Galen. If you think the people are paying too high a bounty, you can keep what you think is fair, and give the rest of it back to the people.”

“Meanwhile, Irving is making out like a bandit and you keep getting your piece of the pie.”

“I don't expect you to understand the nuances of how government works, so I'll take that comment as a reflection of your ignorance.”

“Oh, I know how it works alright, and it stinks like Sam's slaughterhouse on a hot summer day.”

Galen turned and left before Maddox could reply.

Galen rode off to Charlie's Cantina, one of Eureka's more wretched dives. It was where Galen usually went after collecting a bounty to celebrate. It was also where he went when he needed to find extra gunslingers to help him on a particular job. And when things went bad, it was the place where Galen went to drown his sorrows.

Galen drank three men under the table and threw two more out the front door before he settled down into a corner with a bottle to brood.

Most folk forgot he was even there. What exactly happened next, no one knows for sure. But half a dozen people who were closest to him say they saw Galen stagger to his feet with bloodshot eyes swaying like a pine in a cyclone, mumbling “guns and money ... guns and money ...” over and over to himself. Then all of a sudden his eyes widened and everyone heard him scream one word before he staggered out of the bar.


Eureka only had but so many lawyers living within city limits. Unfortunately for Lantry Landon, his house happened to be closest to Charlie's Cantina. And Galen staggered down the street to pound on Lantry's door in the middle of the night.

“Now let me get this straight, Galen. You want to set up a trust fund where you'll contribute a part of your bounties and make that trust available to anyone willing to go collect on other bounties?”

“With the extra stipulation.”

“Right. That anyone who takes from the trust to collect a bounty must donate to the trust a a percentage of their collected bounties as well.”

“Yessir, exactly that.”

Lantry looked at Galen a moment. “How much whiskey you got in you right now?”

“Look, you old cuss. I can shoot straighter now than you ever could.”

“But it don't make sense, Galen.”

“Why the hell not, damn it! Say you got some kid who's pretty sharp in the head, fast on the draw, and has a good sense for trouble. Say he's the kind of person who could collect on a bounty. But say he ain't got the money to do it. Maybe he ain't got no guns or ammo. Maybe he ain't got a horse of his own.”

“Yeah, the setup I get, it's what follows that don't add up.”

“So, say this kid can borrow some money from this trust fund to buy a horse. But he don't actually borrow it in the sense of ever having to pay it back directly. Say he gets to withdraw the money on the condition that if he does bring in a bad guy and collect a bounty, and say he used that horse to do it, then he has to give some of that bounty back to the trust.”

“But how do you keep the lunkheads from bleeding you dry.”

“I'll pick who gets the first loans. And of those, everyone who is successful, gets a bounty, and has to contribute to the trust, gets added to the trust as a voting member. And every time someone new wants to borrow money, all current members vote on whether to give it to him or not.”

“OK, so you get this self-sustaining, possibly growing, trust fund going on for all eternity. The math adds up, I reckon. But there's still a part that just don't make sense to me.”

“What's that?”

“Why would you do such a thing?”

“Because Irving and Maddox are milking Eureka dry, and that ain't right. And because I can't think of any other way of showing folks that they're being taken advantage of than to show that we can collect bounties for a lot less money.”

Lantry was too tired to argue and just nodded.

The next morning, Lantry filled out all the paperwork and set up a trust account at the bank. He then dropped off copies with Galen.

Galen went down to Charlie's Cantina to find his first recruits. He had worked with many of the bounty hunters who hung out there. He explained the trust to each one of them. Some of them thought him crazy. Other's nodded their head with a “it's just crazy enough to work” look in their eyes.

Wyatt was the first to take him up on his offer. He wanted to get himself one of them new Winchester semiautomatic rifles with a scope. Wyatt went to Lantry who had him sign the paperwork and gave him his money. A month later, Wyatt brought in an outlaw by the name of Tillman and signed his reward over to the trust. The trust then paid him what was his due.

Galen's trust grew into a huge success. It grew to the point where people borrowing from and contributing back to the trust were regularly competing with IP Inc for the same bounties. Once it started cutting into his bottom line, Irving visited the mayor.

“It just isn't fair, Mayor. These trust-fund kids are going to put us out of business. You've got to put a stop to them.”

“The whole idea of a bounty system is to encourage competition.”

“Well, a bunch of rank amateurs are going to put a professional corporation out of business if this keeps up. Do you want nothing but a bunch of amateurs between Eureka and the scum of the earth?”

“If they're successful, then why would Eureka care?”

“Need I remind you of the wagon-loads of money I pay you in campaign contributions every year? Or the amount of taxes that IP Inc pays every year?”

“Well, there isn't much I can do. I can't just outlaw this bunch because they're competing with you.”

“I have an idea. I want you to pass a law that lets us put bounty claims on any hideouts that we find.”

“Bounty Claims?”

“Yep. If we catch a bad guy hiding out someplace, we want a claim so that we can purchase the land, and then we get rights to any outlaw caught hiding out on our land.”

“How will that help?”

“The trust fund kids won't be able to purchase any land, so we'll eventually be able to lock them out of all the hideout locations. Once they can't collect bounties from these areas, we'll just squeeze them out over time.”

“I don't think I can get city council to approve that.”

“I'll make them all honorary bounty hunters and start contributing to all their campaigns.”

“Passing a law is too visible. What I'll do is appoint one of your men to be Commissioner of the Land Deeds office. The commissioner can set office policy as he sees fit.”

“I've got just the man.”

At the next town meeting, the Mayor motioned to appoint Darrell Dawson as new Commissioner of Land Deeds. No one knew the importance of the fact that Darrell had been getting checks from IP Inc. in one form or another for the last twenty years, and Darrell received the appointment. Within three months, Darrell quietly distributed his new policies for the Deeds office. Included in these policies was a new policy that allowed bounty hunters to purchase any undeeded land upon which they had captured an outlaw.

No one thought much of it at the time.

Then Galen caught a bank robber hiding out in the badlands and brought him to the sheriff to collect his reward.

“Good job, Galen. Here's your receipt. You should be getting your first check in a week or two.”

“Thanks, Sheriff.”

“Oh, and you can take your receipt down to the deeds office if you want to purchase the bounty rights on that piece of land where you caught this guy.”

“Bounty Rights?”

“Sure. That land hasn't been deeded to anyone yet, so if you want, you can take that receipt to the Deeds office and buy it and the bounty rights that go with it.”

“I'm putting a portion of my reward into the trust. I can't afford to buy land.”

“Well, if you don't and someone else does, they'll be able to claim the rights to any outlaw captured on their land, regardless of who captured them.”

Less than fifteen minutes later, Galen stormed into Mayor Mitchell's office to find the Mayor and Irving having a friendly drink together.

“Well, I'll be damned.” Galen strode into the room shaking his head. “That explains a lot.”

“What burr you got under your saddle today, Galen?” Irving chuckled.

“You know old man Grady just a couple miles east of town?”

“Sure. Did Grady sell you a chicken that won't lay eggs? Is that what's got your rope in knots?”

“Grady's got some of the finest hens around Eureka. And he's got his dog Blue to guard them from any foxes or coyotes.”

“And what's that got to do with the price of gold in Eureka?”

“I figure I feel about what Grady would feel like if he walked in on Blue and some coyote sharing the same water dish.”

“You've been in the sun too long, Galen. You need to get some rest.”

“Mitchell, who's interest are you supposed to protect and guard?”

“Eureka's interests, of course.”

“Like main street ever voted for you or 123 Pine St can sign a ballot.”

“Well, the people of Eureka, of course.”

“And how do you get off betraying the trust of the people of Eureka, taxing them more than they need so that Irving here can become one of the richest men in town?”

“Irving provides a valuable service that benefits this whole town.”

“So do I, you old snake. And my team and I would do the same job for a lot less if you'd just let me.”

“What are you rambling about, Galen? I'm not stopping you from doing anything.”

“I can't afford to buy no bounty rights to some piece of land when I'm giving part of my bounties to the trust.”

“That isn't my problem, Galen. The law is fair. It lets anyone buy those rights. If you want to buy them, and you have the money, you can.”

“But I'm trying to prove that we can bring in the bad guys for a lot less money, and you change the system to favor whoever has more money and can afford to buy land to collect bounties.”

“Well, I can't feel too sorry for you when you're a member of the trust you're giving money to. As far as I can tell, you're just creating a pyramid scheme to make yourself rich. At the very least, you're making the same amount of money as Irving here per bounty, you're just moving it around on paper.”

“I can't touch any money in the trust without everyone's approval, same as any other bounty hunter who wants to borrow money. And the trust started paying out benefits to victims of crime two months ago. So we're not keeping all the money to ourselves. I still live on my pa's old place. But Irving here is one of the biggest land owners in Eureka.”

“So Irving kept his money and you didn't. That ain't his fault.”

“I'm trying to bring in the bad guys without Eureka paying so much money in bounties.”

“If that's what you want to do, Galen, then that's perfectly legal.”

“Yeah, but now this Bounty Rights thing is going to make it so that only people who keep all their reward will be able to buy Bounty Rights and stay in business. I can't do it for less money without getting squeezed out by Irving and his great land grabbing machine of IP Inc.”

“What's wrong with rewarding bounty hunters with land rights?”

“Because it encourages and rewards a monopoly. And it ain't natural. Before this law, I could chase after a bad guy anywhere he went. Anyone could. Competition was encouraged. Success was rewarded.”

“This is rewarding successful bounty hunters.”

“Sure, by giving them a permanent monopoly. By outlawing competition on their land. Now, I might flush some bad guy out of hiding, and if he happens to run onto Irving's land, I lose out because of some artificial rule you made up. And Irving gets to collect after I acted like his bird dog. My success is punished every time a bad guy runs onto Irving's land. And the fact that I'm Bounty Hunting for less money is punished because I can't afford to buy land and compete with Irving.”

“The law isn't meant to punish, Galen. It is meant to be a reward.”

“A reward for you. Irving keeps making more and more money. And you keep getting more and more fat, brown envelopes full of cash. And all of it paid for by the people of Eureka paying far more for bounties than they need to.”

“Eureka pays what it considers to be a fair price for bounties.”

“Whatever happened to getting the lowest professional bid for a job? Isn't that what Eureka should pay? Shouldn't it be the lowest bounty that will get the job done? The bounty that keeps Irving here in silk cowboy hats and a thousand acre ranch is corporate welfare.”

At this, Irving finally spoke up.

“Galen, you're starting to sound like a communist. Is that what you are? Someone who doesn't believe in property rights? That's all these Bounty Rights are, after all: property rights. Are you anti-capitalist? Is that it? Because you don't seem to like the fact that I make money off of my work.”

“Irving, you haven't slung lead in years. You're lazy and comfortable and you're using your position to keep yourself cozy. In itself, I wouldn't care a plugged nickel about you or how you live. But the thing is that you're living the way you are by enforcing a monopoly on the people, granted in part by the purchase of a few political offices. And that really burns my bacon. Capitalism is about competition. And in that sense, I'm all capitalist. I know my bounty hunter trust is growing. And I know we're doing the same job as you for a hell of a lot less money. And that means only one thing...”

He pointed a finger at Irving in a flash of movement and Irving flinched.

“In the long run,” Galen finished, “I'll beat you.”

Galen turned and walked out the door.

3 Art Imitates Life

It's a lousy place to end a story. But unfortunately, the story of Eureka and it's bounty hunters is a metaphor for the history of intellectual works. The current state of affairs around intellectual works places Irving in the mayor's office, sharing a drink and a cigar. As much as I'd like to write a happy ending for the good people of Eureka, I can't.

How does Eureka act as a metaphor for intellectual works? In the early days of Eureka, crime is a problem that could only be solved by someone putting in the work needed to get the bad guys off the street. The lack of law enforcement in Eureka is equivalent to the lack of writing or invention in our world. Both require individuals to do the work to fix the problem.

Creating intellectual works is a service industry, the way a sheriff provides a service of enforcing the law. The term “Intellectual Works” reflects the work or labor needed to create the writing or invention.

Do not let someone fool you into thinking that writing and inventing is a manufacturing industry because they create “Intellectual Property.” Intellectual works existed long before the laws came along and allowed them to be turned into intellectual property.

An intellectual work is intangible. A book is not an intellectual work; the meaning contained in the words is the intellectual work. The intellectual work in an invention is not the iron and wood of the machine, but the design and function the machine performs.

Do not commit the logical fallacy of reification, treating an abstract concept as if it were a concrete, physical thing. The books that carry the words, the machines that perform the functions, are made by printing presses and assembly lines. Intellectual works are not manufactured things. Intellectual works are abstract ideas created by the labor of human minds.

3.1 Wild Frontier

The story of Eureka starts with no bounty hunters, no bounties, no rewards. Eureka slowly becomes aware of its distinct problem with crime. And this problem requires a solution.

Our history of intellectual works starts in 1440, with the invention of the Gutenberg press. A scribe copying a book by hand produced about one book per year. A Gutenberg press produced several hundred books a year. Literacy rates slowly started going up. People could exchange ideas. This fueled the renaissance, which started in the 1300's in Italy and in the 1500's in northern Europe. The renaissance was a revolution in science and art considered the birth of the modern world.

This time was the Wild West of intellectual works. Mankind slowly became aware of its problem with respect to intellectual ideas. Art and Science became a seemingly endless series of problems to solve.

With this vast, untamed intellectual territory, it seems almost natural that someone like Leonardo da Vinci (1452-1519) came along and threw himself into a multitude of disciplines. He painted, sculpted, invented and designed all manner of intellectual works. His disciplines ranged from anatomy to astronomy.

William Shakespeare (1564-1616) is considered the greatest writer in English. His works survive and thrive to this day.

Inventors up until this time made money as craftsman, not as inventors. A craft, such as shipbuilding, could take a lifetime to learn, so even if someone knew the idea underneath a new invention, they didn't have the skill to build it.

Printing presses were becoming common. But literacy rates were still not exceedingly high, so someone like William Shakespeare paid for the labor of writing his plays by performing them with his theater group.

The incentive systems at this time were part of the evolution of the crafts and of writing. People found ways to write and invent and pay for their labor through other means. Writers were paid for their writing by performing their works. Inventors were paid for their creativity by using their craftsmen skills to build them.

What made this system of incentives start to evaporate was the advent of steam power, the industrial revolution, and wide-spread literacy. The first industrial steam engine was built around 1700. Craftsmanship was replaced with mass production. Widespread literacy meant widespread science and scientific papers. The result of a lot of scientific research might produce its most valuable work in a book and might not translate well to other forms of employment.

3.1.1 The First Outlaw

The story of Eureka first came to a head when Tinker Tyson started robbing trains. Crime had slowly grown over time in Eureka. But Tinker Tyson made it abundantly clear that crime had become a problem in the city.

The problem of writing began to show up in the 1600's. Literacy was high enough that there were a lot of people who might buy books. And with such a potential customer base, the idea of making a living strictly on your writings had become an appealing idea. The world had reached a point where a learned man could write a useful book, but had no means of ensuring he could make a living just by selling books.

The problem with inventions began to show up around the same time. The British Empire was built firmly on its sea power by the late 1600's. Exploration and colonization of the New World was a lucrative business. However, navigation up to this point could only determine a ship's latitude, not its longitude. Not knowing your longitude had several expensive repercussions, not the least of which that ships sometimes sank and men died because they didn't know exactly where they were.

The way crime came to a head in Eureka with Tinker Tyson and his band of outlaws, so too did the need for intellectual works come to a head with the need for useful books and the need to solve the longitude problem.

3.1.2 The Hostage Scenario

In our story about Eureka, the city could have simply waited for someone to come along and round up Tinker Tyson for free. There was nothing that would have prevented one of Eureka's citizens to ride into town and clean up crime. An independent enforcer could have donated his time and energy going around the city, chasing after the Tinker and his outlaws, and bringing them into justice for free. This individual would risk life and limb for the benefit of everyone in town.

Should Eureka rely on this happening? Should Eureka rely on some masked crusader saving their town for free? Or should Eureka create some incentive system to solve its problem with crime? That's the question to be answered here: What incentive systems should exist in the world?

It turns out that from a game-theory point of view, this is a derivative of a “Prisoners Dilemma” called a “Hostage Scenario”. Imagine a criminal takes a hundred people hostage. He has a revolver with 6 bullets and a belt of ammo. The criminal makes some demands to the authorities (money, escape, whatever) or he'll kill a hostage in some time frame (say 2 hours). At this point, every hostage has a 99 in 100 chance of surviving the next hour of the ordeal.

If one of the hostages decides to take on the criminal and fight him, that hostage is unarmed and has a 5 in 100 chance of surviving (if they're lucky), and they have a 95 in 100 chance of getting shot before they overpower the criminal.

The choices are (1) go along quietly (99 in 100 chance of surviving) or (2) fight (5 in 100 chance of surviving). With these odds, the individual has a much better odds going along with the ordeal than trying to fight. The thing is that these odds apply to EVERY hostage as an individual, so every hostage will have a great incentive to go along quietly and hope they survive.

In our story, Eureka should not sit around and wait for one of its citizens to volunteer to bring in the bad guys.

(side note: It turns out that in a “Prisoner's Dilemma” game, the prisoners can come to a better outcome for themselves if they cooperate. In a hostage scenario, the odds for fighting back improve greatly if all the hostages work together and can overwhelm the criminal. There is still individual risk, but as a group, the hostages have a much better chance to subdue the criminal and win their freedom. If the hostage taker isn't suicidal and packed with explosives, a coordinated group response can be successful. We'll address this option later.)

So, what sort of incentive system should exist?

Some incentive needs to exist that would offset the risk that an individual would have to take. In our story of Eureka, this happens when Mr. Clayton offers Eureka's first bounty.

3.1.3 The First Bounty on Earth

Tinker Tyson was on the loose, killing people and robbing trains. The sheriff was too undermanned to take on Tyson. Victor Clayton decided to offer a $25,000 reward to anyone who can bring in Tinker Tyson.

The history of intellectual works also has the first bounties for writing and inventions.

In 1710, the Statute of Anne was passed by the British government. It is the first copyright law in human history. And it rewarded authors with exclusive rights to copy and print their work for twenty-one years, requiring printers to get the author's permission to make copies of their books. The statute explains its reasoning for doing this as “for the Encouragement of Learned Men to Compose and Write useful Books.”

In 1714, the British government offered a prize for anyone who could design a way to determine a ship's longitude. The prize was between 10,000 and 20,000 British pounds, depending on how accurate the solution was. Some people attempted to come up with a solution, but none collected the prize. A clock maker by the name of John Harrison came up with a solution that would work but required a mechanical clock that was more accurate than had ever been built before and could operate on the rolling deck of a ship. He started working on the clock design in 1730. It took him over 30 years to do it, but in 1761, he presented a clock design that was accurate enough to qualify to win the prize.

3.1.4 Measuring Success (Catching the Bad Guy)

Clayton's bounty was pretty specific. Capture or kill Tinker Tyson and bring his body back to town before the railroad company stopped train service to Eureka. Whoever succeeded in doing that first, got the $25,000 reward (later raised to $50,000).

The longitude prize was fairly specific as well. Discover a way to determine the longitude of a ship within one degree.

But how do you define success when the bad guy is unknown at the time you determine the bounty to be offered? And if you don't know how bad the bad guy is, how can you determine a fair bounty system for all future criminals?

For criminals, you might be able to create a bounty chart that listed bounties based on the crimes the person is wanted for. A horse thief goes for $1,000. A bank robber goes for $2,000. And so on.

For the arts and sciences, you could come up with a chart that paid 5 cents a word for fiction and 10 cents a word for non-fiction writing. Drawings could get paid $100 per canvas or sheet for art and $500 a page for technical diagrams. The problem then is that you've set the price, but you have no way of measuring success. You have no way of determining if the work handed in by the person in front of you is actually worth the 10 cents a page or not.

This actually happens now and then when you hear a story about a government endowment for the arts that was given to some painter or sculptor. The reason the story makes the news is because the painter took the money and turned in a white canvas with a black dot in the middle of it. Or the sculptor took the money and turned in some scrap iron from the local junkyard that he welded together. The local citizens are up in arms because their tax money went to fund something they think is a waste.

It turns out that the solution to this problem is simple in concept and ingenious in its design.

What the British government did was to turn the endowment for the arts into a voluntary tax system. The Statute of Anne took an abstract thing that was the writing and ideas in a book, and declared it to be a thing, the exclusive property of the author. Anyone who wanted a copy of this abstract thing would have to get permission from the author, which the author would likely grant for a small fee.

The government decided that they didn't want to tax the people and use that money to fund some large and unwieldy endowment for the arts program. They wisely foresaw the people complaining of all the new taxes and how the money was being spent on all sorts of stupid books. Instead, the government decided they would give writers ownership of their abstract work as if it were their exclusive property, and as exclusive property, the author could then sell copies of the work to readers.

Rather than pay taxes for a massive endowment for the arts program, people would pay money to an author for a book they wanted to read. The government extracted itself from a lot of headaches and complaints, and left it to the people to decide if they wanted to pay an individual endowment for the arts by buying a copy of some author's book.

It was then simply a matter of picking how long was long enough for the book to be treated as the exclusive property of the author. Up until the Statute of Anne, intellectual works existed only in their natural state as abstract ideas. The new law would require everyone treat the abstract idea as if it were the physical property of the author. But this only lasted for a while, and then the legal encumbrances would fall away and it would be a simple abstract idea again. So the question was how long should an idea be treated like property.

What sort of incentive system should exist?

This is where the bounty hunter metaphor is extremely important. The community decides on some amount for an award, and then they see if any individuals take them up on their offer. Clayton offered $25,000 to bring in Tinker Tyson. It turned out that this didn't get anyone who could actually do the job interested in the reward. So Clayton raised the reward to $50,000.

In 1710, the British government settled on 21 years as being long enough to treat a book as the exclusive property of the author. After 21 years, the abstract work contained in the book was treated like any other abstract idea, and anyone could copy it, use it, etc. The author was given 21 years to sell their book, and if they didn't make their money by that time, they were out of luck.

3.1.5 Winner Take All

Clayton offered one bounty to the first person who succeeded in bringing in Tinker Tyson. He didn't offer money for runner ups. He didn't offer money on an hourly basis. It was a winner-take-all contest.

This creates risk for all bounty hunters. Not everyone who starts out looking for a bad guy is going to catch him and collect the bounty. Some people aren't cut out to be a bounty hunter but have to learn the hard way. Some people would make a good bounty hunter, but might miss a clue and miss nabbing the bad guy. Several experienced bounty hunters might be going after the same bad guy.

Only the first person to catch the bad guy gets any bounty.

This is actually a good design element of our incentive system. It encourages people to achieve results quickly. The first one to get the bad guy wins. Catching the bad guys sooner is better than later, and this system rewards “sooner”.

It also means that failure does not cost the person offering the bounty anything. Clayton offered $25,000 bounty on Tinker Tyson's head. But he didn't have to pay a red cent for the Haskel brothers going after Tinker stone drunk and getting themselves killed.

The first copyright system worked the same way, offering a 21 year exclusive bounty to the first person who wrote something. Patent law (which we'll get to later) gives the first person to register a new invention the exclusive rights to that invention. This gives incentive for people to write and invent new works.

Success is rewarded by sales of the book or invention to the public. Failures cost the community nothing. The risk is on the authors and inventors to be successful, to create something the public wants. If someone who can't write worth a hoot keeps cranking out books that no one buys, he is the only one who loses anything.

3.1.6 Cutting Cake for Bounty Hunters

Our incentive system is looking good so far.

Think of a bounty system as a modified cake cutting algorithm.

The cake is community property. The community wants some bad guy caught or some intellectual idea discovered. The community offers a piece of cake as a bounty to the first person who brings in the bad guy. The community picks some size as an initial offer and waits to see if anyone collects. If no one collects, the community offers a bigger piece of cake, and so on, until someone collects.

Since only the first person to catch the bad guy gets the bounty, there is pressure between the bounty hunters to get the bad guy as quickly as possible, for the lowest price possible, or someone else might take the piece of cake. But the piece must also be big enough to pay for the time, energy, and expenses to catch the bad guy, which pushes the size of the bounty to some minimum. But first-success-collects puts pressure on the bounty hunters to do the job as efficiently as possible, so they can take the first bounty offered and still make money.

The community, obviously, wants to offer as little cake as possible to get the job done.

In the end, the bounty hunter cake cutting algorithm settles on the smallest piece of cake that will get the job done as quickly and as efficiently as possible.

And the algorithm is robust because it will tend to this solution for many types of individuals for varying levels of selfishness.

3.2 The First American Bounty

In 1787, the Constitution was ratified by the states. Section 8 of the Constitution granted Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;"

To catch a bad guy ==> To promote the progress of science and useful arts

A bounty shall be offered ==> Creators shall have exclusive rights for a limited time to their works

It was then left up to Congress to determine what rights should be secured and for what duration. Three years later, the Copyright Act of 1790 granted Authors the right to print and publish their work for 14 years and to renew for another 14 years. Registration of the Writing with the Library of Congress was required for protection. The Writing had to contain a Copyright Notice to be protected. (i.e. Copyright 2004 Greg London) Works that are not registered or do not contain a notice are not protected and remain freely available to anyone.

3.2.1 Isaac Preston pays a visit to Mayor Maddox.

In our story of Eureka, something goes wrong with the bounty hunter cake cutting algorithm, and it happens when Isaac Preston pays his first visit to Mayor Maddox. The point of the algorithm is to settle on the lowest price that will get the job done as quickly and as efficiently as possible.

Isaac Preston, however, was a silver tongued devil, and he convinced the Mayor that the bounty should be readjusted based on the value of the service provided. The Bennett Boys stole half a million dollars, and Rex rustled over three hundred head of cattle, so Preston argued that the bounty should be based on the value of the result, rather than on the amount of work it took Preston to catch the bad guys in the first place.

The original algorithm settled on the lowest price that would get the job done as quickly and as efficiently as possible. The original algorithm was also robust, and settled on this price even if the players covered a wide spectrum of morals. The original algorithm was objective: offer a low bounty and then raise it until someone takes it.

The new algorithm paid more for the job than needed. It still rewarded quickness, but efficiency was no longer necessary, so Preston had extra money to hire a lot of extra help. The new algorithm was also subjective, requiring the community to determine the value of catching the bad guy, rather than simply focusing on how much it cost to catch him. And once any algorithm becomes subjective, it requires some of the players to be fair and independent, but requiring a player be fair makes the entire algorithm less robust.

3.2.2 The Bounties Keep Going Up

Something like Preston's visit to the Mayor's office happened in the history of intellectual property. There are several possible events, so I'll skim through the list.

In 1710, the Statute of Anne was passed by the British government. It was the first copyright law in human history. And it rewarded authors with exclusive rights to copy and print their work for twenty-one years.

In 1790, Congress passed the first copyright law in America. The Copyright Act of 1790 granted Authors the right to print and publish their work for 14 years and to renew for another 14 years.

In 1831, Congress extends the term of Copyright to 28 years plus an additional 14 year extension, claiming it matches the protections provided to Authors in Europe.

In the 1880's, Victor Hugo, author of Les Miserables, paid a visit to some government official's office, and pushed for the Berne Convention. The Berne Convention was a treaty between a number of European countries that agreed to recognize copyright protections from member countries. Without such a treaty, copyright was only a national law, and a work would be under copyright only in the country where the author lived. The work would be public domain everywhere else.

In 1905, the Berlin Act modifies the Berne Convention to extend the Term of Copyright to the life of the Author plus 50 years.

In 1909, Congress passed the Revision of U.S. Copyright Act, and the term of Copyright is changed to be 28 years plus an additional 28 year extension.

In 1911, the United States entered the Buenos Aires Convention on Literary and Artistic Copyrights. This is the first international treaty the U.S. signs. The Buenos Aires treaty required all works protected by the treaty to contain a notice proclaiming "All Rights Reserved". (note that this is different than "copyright notice" which would be something like "Copyright 2004 Greg London").

In 1928, the Rome Act modified the Berne Convention to recognize "moral" rights of Authors. An Author's "moral" rights included "attribution" (the Author must be given credit for their works) and "integrity" (the work cannot be modified in a way that might prejudice or harm the Author's reputation).

In 1952, the Universal Copyright Convention (UCC) was adopted at Geneva in 1952 by countries who were not part of the Berne Convention but wanted some sort of international copyright protection. Members included the United States, Latin America, the Soviet Union, and some developing countries.

In 1976, Congress passed the U.S. Copyright Act of 1976. This is a major revision to Copyright law in anticipation of the United States joining the Berne Convention. The Term of Copyright had been 28 + 28 and is changed to "life plus 50".

In 1988, the United States joined Berne Convention, meeting the requirements of the treaty with the U.S. Copyright Act of 1976. The Universal Copyright Convention of 1952 no longer applied to U.S. Copyright law. The Buenos Aires Treaty of 1911 was no longer applicable. The phrase "All Rights Reserved" was no longer required to secure copyright in the U.S.

In 1993, the European Union Directive on Harmonizing Term of Copyright was issued. The goal was to ensure that there was a single duration for copyright across the entire EU. The chosen term was that of Germany, which had the longest copyright term of any EU state, lasting 70 years after the death of the author. Unlike some other copyright term extension acts, this act restored copyright to works that had fallen into the public domain in their source countries.

In 1998, the Sonny Bono Copyright Term Extension Act (CTEA) was passed in the United States and retroactively extended the duration of Copyright from "life plus 50 years" to "life plus 70 years". The main argument given in its favor was to keep up with the EU Directive on Harmonizing Term of Copyright of 1993.

3.2.3 An Immortal Mouse

The Isaac Prestons of the world keep visiting the Mayor's office, corporate money keeps flowing to politicians in the form of campaign donations, and copyright terms keep going up.

In 1928, Walt Disney put out a movie called “Steamboat Willie”, starring Mickey Mouse.

At the time, copyright terms lasted 28+28=56 years. This meant that the bounty would have been paid in 1928+56=1984. The Mickey Mouse in “Steamboat Willie” would have become public domain in 1984.

But in 1976, Congress changed copyright law in preparation for joining the Berne Convention and extended copyright terms to “life plus 50 years”. Since corporations never die, corporate copyrights were set at 70 years. This meant that the bounty for “Steamboat Willie” would keep getting paid until 1928+70 = 1998.

But in 1998, Congress passed the Copyright Term Extension Act (CTEA), extending terms to “life plus 70”. Copyright terms for corporations were extended from 70 to 90 years, meaning Walt Disney Incorporated will keep cashing in on its bounty until 1928+90=2018.

In 1995, the Lobbyist Disclosure Act of 1995 was passed, requiring lobbyists (with a narrow definition of "lobbying") to report income or expenditure figures. Americans could now find out how much it costs to buy their government. I mention this because this was passed 3 years before the CTEA was brought before Congress. And as a result of the Lobbyist Disclosure Act, Walt Disney Corporation reported 2.5 million dollars in political contributions for 1998.

Political contributions paid by Walt Disney Corporation around the time the Copyright Act of 1976 are not known and must be left to the imagination.

I don't know, I can imagine a lot.” --Han Solo, Star Wars Episode 4, “A New Hope”

Our bounty hunter cake cutting algorithm has been hijacked. Congress, who sometimes refer to themselves as “representatives”, seems to have forgotten whom they represent. Congress acts as cake-cutter on behalf of the people, the citizens, the community. The Walt Disney Corporation is a bounty hunter. Congress is supposed to cut the cake as small as possible until someone takes the bounty. But what has happened is that Congress now represents corporate interests over the community. The cake-cutter has been bribed by the bounty hunter. The bounty hunter now selects the size of the bounty through the purchase of a number of politicians.

The bounty hunter gets to cut the cake and eat it too.

As of 2005, Walt Disney Corporation is cashing in on these bounties with revenues around 20 BILLION DOLLARS A YEAR. Copyright terms have been extended to the point of becoming a form of corporate welfare, paid for by people who have to pay for works that should have entered the public domain decades ago.

Congress extends copyright terms so works don't enter the Public Domain. The people have to continue paying corporations for works that should have become free. Corporations then skim some of that money and give it to Congress as campaign contributions. No one in this loop has ever been convicted of giving or taking kickbacks, but that doesn't mean the whole thing doesn't stink like Sam's Slaughterhouse on a hot summer day.

3.2.4 The Argument Against Life Plus N

The algorithm is to set the bounty just high enough to get one job done.

This means that a bounty hunter has to keep working to make a living.

The algorithm will settle on a price just high enough to pay for the time and energy and expenses to catch the bad guy plus make a small profit. Competition will drive the bounty down and prevent anyone from making a gross profit on any single bounty.

Successful bounty hunters should be able to make a living if they keep collecting bounties.

That is not the same as a bounty hunter making a living after collecting one bounty.

The bounty should pay for the time, energy, and expenses of the one job.

For writers, the term should be long enough to pay for the time, energy, and expenses of writing the one work that gets copyrighted. Successful writers should be able to make a living writing. But that is not the same as a writer living off of the money from a single book for their whole life.

Terms that last “life of the author plus N years” do not follow this algorithm. In fact, “Life plus N” terms have several logical flaws in them.

Say someone writes a book when they are 15 years old. And say the average lifespan is 70. The “Life plus 70” term currently in place would seem to indicate that it will take 125 years for the author to make back all the time and energy they put into the book. And if it doesn't take 125 years, then why pay so much bounty?

A person who writes a book at 15, spent at most 15 years writing the book, and gets a 125 year bounty. They get 125 years to pay back 15 years of work. But if someone spent their entire life writing a book, they invested 70 years before they published their work, but then they die the next day and their heirs only get 70 years to paid back for the work.

15 years of work ==> 125 years of pay

70 years of work ==> 70 years of pay.

That doesn't seem right.

The second logical flaw flaunts the conservation of energy. If it's true that an author needs more than their lifetime to pay for their time and expenses on a book, then that means that author is LOSING money while they are alive. They're putting so much time and energy into it that they won't break even until they are dead and their great grandchildren are in college.

If Isaac Preston spent a million dollars to catch Bad Bart, and Eureka paid a thousand dollar a year bounty for him, then it will be one thousand years before Isaac's heirs finally gets enough money to pay for Bart's capture.

No incentive system can be designed to take so long to pay back a bounty that the bounty hunter dies before he finally breaks even.

If it really takes that long to break even, then our incentive system will never work. Unless bounty hunters are all bringing in the bad guys out of charity. And the writers demanding a life-plus-70 bounty are not thinking about charity. If they were thinking of charity, there are plenty of ways they could give their work away for free.

The “life-plus-70” proponents aren't concerned with the work they put into their writing or whether or not they broke even on that writing. They're main concern seems to be summed up well with the phrase, “It's mine!”

Mainly, these authors are committing the logical fallacy called reification. They are relating to an abstract concept as if it were a physical thing. Intellectual works are abstract. They are not physical objects you can possess and control. Once someone reads “to be or not to be”, even if you wrote it, you cannot force them to remove that thought from their mind.

Copyright law is needed to give abstract intellectual works some semblance of property-like behavior. But the U.S. Constitution only allows Congress to pass copyright laws as a bounty for people who create works to promote progress. So, it only exists as an incentive system to create works, and then the works return to their natural, abstract, unencumbered-by-law, state.

Relating to an abstract idea as if it were physical property is a logical fallacy. Intellectual works are property only because the community agrees to treat it as property as a reward for the creator. Creators cannot start from the premise that intellectual works are like physical property they control completely without ignoring the fact that it only behaves that way because the community agrees to it as a bounty for the work.

3.2.5 Resetting the Bounties, The Ideal Goal

I would propose a copyright term of 42 years as the bounty for creators.

First and foremost, the cake cutting algorithm for bounties requires the bounty be set as low as possible to get the job done. This encourages competition, efficiency, and speed. The duration for copyright on a work should be just long enough to pay for the time and energy it took to write the work plus pay a profit.

42 years seems like it should be long enough for an author to sell his work and have a chance at making a profit. Taking a story and translating it into all the different media should be doable in 42 years, for example taking a novel and converting it into a movie, a TV show, a radio show, a cartoon, and of course toy merchandising, should be something that can be reasonably accomplished in 42 years. 42 years should also be long enough that some publisher would be willing to invest in a work while copyright protects it. Certainly, if terms were extremely short, say, 1 year, then most people would simply wait for the copyright to expire and get the work from the Public Domain. However, 42 years should be long enough that financial investment in the arts can succeed and profit.

As it happens, 42 years is the term that the United States had set for its Copyright from 1831 until 1909, or more specifically terms were set to 28 years plus the option to renew for another 14 years. For almost a century, artists and authors were willing to create and publish their work for a 42 year term or less.

Works written by Americans during this period include The Last of the Mohicans (1826), The Tell-Tale Heart (1843), Walden Pond (1847), The Scarlet Letter (1850), The Adventures of Huckleberry Finn (1851), Moby Dick (1851), Uncle Tom's Cabin (1852), Little Women (1868), The Adventures of Tom Sawyer (1876), The Prince and the Pauper (1882), An Occurrence at Owl Creek Bridge (1886), A Connecticut Yankee in King Arthur's Court (1889), The Red Badge of Courage (1895), The Fall of The House of Usher (1834), The Wonderful Wizard of Oz (1900), Heart of Darkness (1902), The Call of the Wild (1903).

American authors who were willing to write during this period when they would receive a 42 year term for their works included: Edgar Allen Poe, Louisa May Alcott, Harriet Beecher Stowe, Mark Twain, Herman Melville, Nathaniel Hawthorne, Joseph Conrad, Jack London, and Henry David Thoreau.

As it happens, some, such as Mark Twain, advocated for longer copyright terms. But what is important to note is not what Mark Twain wanted to get paid for his work, but what Mark Twain was willing to get paid for his work. It may also be of interest to note that Mark Twain made a lot of money off of a 42 year copyright term, but his arguments for a Life-Plus-50 term show that he committed the fallacy of reification, of relating to the abstract labor of a writer as if it were a physical thing. In a speech to congress, Twain compares an Author's Copyright to Land or Real Estate owned by the Author.

I am quite unable to guess why there should be a limit at all to the possession of the product of a man's labor. There is no limit to real estate. ... Doctor Hale has suggested that a man might just as well, after discovering a coal-mine and working it forty-two years, have the Government step in and take it away.

Twain starts with the physical metaphor of someone discovering coal on their property, and ignores the fact that the thing created by a writer is not physical coal but abstract labor. To correct Twain's metaphor, the author does not own the land. They are rewarded for their labor of digging out the coal. In the same speech, Twain argues for copyright terms that last for “Perpetuity”. You can read Twain's speech here:

So, it seems that the current arguments used by Disney and the likes are not new. They are old arguments. And they are wrong arguments. And they are wrong because they consistently use misleading metaphors that start with some physical object and end up equating the last payment of copyright, the moment at which the work enters the Public Domain, with physical theft. Start with a bad metaphor that equates a writer's labor with a physical thing, and you end up with bad copyright law. Start off with metaphors that equate a writer's labor with some other labor or service, and you may end up with some sort of Fair copyright laws.

On the other hand, given what Twain himself was willing to write for, given that the man who argued for a Life-Plus-50 term was not only willing to write for a 42 year term, but also managed to make a lot of money doing it, it seems that 42 years has shown itself to be a long enough term that authors can be more than compensated for their efforts. History shows America had a century where the copyright Bounty was set to 42 years and authors were willing and able to successfully collect, to make a living at it, to thrive at it.

There will be current writers out there who will complain about shortening terms to 42 years. Some will fight it.

But the question for the community is simple: who should be setting the bounty?

Hopefully the community realizes that the community should be setting the bounty, not the bounty hunters. The algorithm is to set the bounty as low as possible but just high enough to get the job done. The algorithm does not say set the bounty so high that Walt Disney Corporation makes 20 billion dollars a year in revenue.

If the term is set to 42 years and novels still get written, movies still get created, and TV shows still get produced, then why pay a higher bounty? Mark Twain was willing to write for a 42 year term, and made an extremely good career doing so. The point is not what the authors want for their writings but what they are willing to write for.

Footnote regarding Twain: Twain spoke before Congress in 1906 for Life-Plus-50 copyright terms because Europe had just started Life-Plus-50 terms during his lifetime in 1880. Congress responded in 1909 by extending terms from 28+14 to 28+28. America didn't succumb to the Life-Plus-50 term until 1976, when Disney's Mickey Mouse was getting close to entering the Public Domain and Bruce Lehman was principal legal adviser to the U.S. House of Representatives committee that drafted the 1976 Copyright Act. Then when Mickey Mouse was about to enter the public domain again in 1998, Bruce Lehman was the Patent Commissioner and pushed for the Copyright Term Extension Act of 1998, extending copyright terms ANOTHER 20 years. Which is what you would expect to happen when the bounty hunters are in control of setting the bounties.

3.2.6 And if 42 isn't the answer, how about 56?

If the number of authors and new works created up until 1909 is not enough to convince you, then perhaps the number of authors and works up until 1976 will. From 1909 until 1976, copyright terms were set to 56 years or 28 years + 28 years extension. And during that period of time, the number of works exploded due to advances in publishing and movie making technology.

Novels written with a 56 year or less copyright term: “The Andromeda Strain” by Michael Crichton, “Jaws” by Peter Benchley, “Slaughterhouse Five” by Kurt Vonnegut, “The Exorcist” by William P. Blatty, “The Old Man and the Sea” by Ernest Hemingway, “The Sound and the Fury” by William Faulkner, “The Grapes of Wrath” by John Steinbeck.

Movies made with a 56 year or less copyright term: Jaws, One Flew Over the Cuckoo's Nest, Rocky Horror Picture Show, Blazing Saddles, Young Frankenstein, The Exorcist, The Sting, American Graffiti, The Godfather, The Andromeda Strain, M*A*S*H, Butch Cassidy and the Sundance Kid, Planet of the Apes, The Dirty Dozen

The occurrence of pullitzer prize and nobel prize winning literature written under a 56 copyright term would seem to support the notion that 56 years is clearly sufficient reward to give incentive to great authors to write novels and great movie makers to create movies.

Therefore, in setting the bounty to be as low as possible, but high enough to get the job done right, it would seem that a range of 42 to 56 years is sufficient. To make things easy, I suggest splitting the difference and settling on 50 years.

3.3 Galen's Trust and Copyleft

In our story of Eureka, the next thing to happen was that Galen created his bounty hunter trust fund. Galen had watched Preston push the bounties higher and higher, and Galen knew there must be a way to do it for less.

Galen's Trust Fund is a rough metaphor of the GNU project. The GNU project was started in 1984 by Richard M. Stallman to create a complete UNIX-style operating system. (GNU is a recursive acronym for “GNU's Not Unix”.)

Leading up to 1984, Stallman had been stymied by the UNIX operating systems available at the time. They were all available under very restrictive licensing, to the point where you couldn't even fix software on your own machine without getting permission.

Stallman had the idea of creating a complete operating system that was like UNIX in functionality, but was completely open in how it worked and had no restrictions like the ones that prevented you from playing with your own computer.

Stallman introduced his idea and created the GNU-General Public License (GNU-GPL). Metaphorically, this license is the same as the legal document that created Galen's Trust. The GNU-GPL was a license that people could apply to their code that would put the code into a “trust” that anyone could draw from. The only real restriction on this trust is that you couldn't use something from the trust to compete against the trust.

If anyone took code that was GNU-GPL, modified the code, and then distributed the code, the GNU-GPL required that the person distributing the code had to provide the original source code used to create the software.

Source code is made up of text files that people type into the computer by hand. Because it is human written, it is covered by copyright. To execute code, you first have to compile it and turn it into something the computer can read, called machine code. The variable $total might translate into memory address 492783. Because compiling strips out all the human readable information, if all you have is machine code, it is impossible to get back all the information that was in the source code.

GNU-GPL requires that anyone who distributes a derivative of the original must also distribute a copy of all the source code used to create the derivative. By this requirement, GNU-GPL keeps all derivatives available to the community so that anyone can play with it.

If someone licenses their source code GNU-GPL, that means anyone can modify it, compile it, execute it, play with it. But if anyone modifies the source code and distributes the compiled machine code, they have to also distribute their modified source code under the GNU-GPL.

Once source code is licensed under the GNU-GPL, it enters a “community trust fund” of sorts, where anyone can play with the code, even modify it, but the modifications have to be made part of the community trust fund as well.

This characteristic of the GNU-GPL is called copyleft. The work, and all its derivatives that get distributed, become community property.

Because GNU-GPL requires that the source code be made available for any derivative that gets distributed, it is sometimes called an “Open Source” license.

Imagine Garrett releases some software under GNU-GPL for tracking bad guys and bounty accounting (Eureka has to hit the electronics age eventually). Anyone can play with this software, use it, etc. Say Preston gets it, and modifies it to use it in some of his software. If Preston tries to sell a compiled version of his code, he must make the source code, including any changes he made, available under the GNU-GPL. This means Garrett can use the modifications that Preston made. This means that Preston's software won't be any better than Garrett's software. This means that Preston can't use Garrett's software to make something slightly better and compete against Garrett's version of the software.

The GNU-GPL allows someone like Garrett to sell the software, but it prevents anyone from monopolizing the software that they sell.

There is no real-world metaphor that is an exact fit for describing copyleft. Copyleft keeps the work in its natural, abstract state, rather than letting someone use the bounty system of copyright and patent to turn it into something that behaves like property in the eyes of the law. Since any real-world metaphor will be based on some physical, real-world object, any such metaphor will have some problems describing the complete nature of copyleft.

Which isn't to say we shouldn't try, but just to keep in mind that any metaphor will fall short of a complete description.

One metaphor often used to describe the GNU project is a “barn raising”, but barn raising's don't catch bad guys. So I had to defer to a trust fund for a community of bounty hunters. The bounty hunter metaphor is specifically in answer to the question “What sort of incentive system should exist?”

Later, I'll introduce a better metaphor specifically for modeling the abstract characteristics of intellectual works and how that would look in relation to someone like Preston and someone like Garrett.

3.3.1 The Hostage Scenario

The original setup for Eureka was a variant of the Prisoner's Dilemma called a “Hostage Scenario”. The game theory chart for a hostage scenario gives low risk for doing nothing and going along with the hostage taker and a high risk for fighting the hostage taker.

Intellectual works at the beginning of our story have a similar setup. If someone invests a lot of time, work, and energy and creates some new intellectual work, they have no natural way of making that investment back. Without Copyright and Patent laws, everyone immediately benefits from any individual's creation. Copyright and Patent laws create a legal incentive system to make it worth an individual's effort to risk creating something valuable.

But there is another alternative. In a Prisoner's Dilemma, another solution is for the prisoners to cooperate with each other and work together. In a Hostage Scenario, if all the hostages rise up together against the hostage taker, they have a higher chance of subduing the hostage taker.

With intellectual works, there is a solution involving cooperation of the people. Rather than having one individual take a huge risk, many individuals work together, taking small risks, for a large payoff.

The metaphor to describe this situation is a Barn Raising. All the individuals in a community come together, contribute a small amount of their time and energy, and create something that no single individual could have accomplished in any reasonable time.

The only difference is that with a physical barn raising, the payoff often goes to the one individual who needs it, and the rest of the community is repaid when they need a barn.

With an abstract thing like intellectual works, the community comes together to contribute some of their time and energy to create something that no single person could have done on their own, and create something that the whole community benefits from immediately.

3.3.2 An Alternative Incentive System

Barn Raisings are an incentive system. Rather than create a reward or bounty for a single individual big enough to pay for all their expenses, a barn raising lowers the expenses per individual to the point where the cost per individual is low enough that it can be part of their “surplus”.

A simple game theory of economics has individuals coming together, all of whom create something they need plus a surplus that they can sell to others. The baker makes enough bread for himself and plenty more to sell to the townspeople. The blacksmith creates things made out of iron and sells his surplus to everyone else. When the baker sells his surplus to the blacksmith and the blacksmith sells his surplus to the baker, that becomes a win-win situation.

Barn Raisings rely on individuals to contribute some of their surplus time, energy, tools, and/or materials to a community project. For a project that literally raised a barn, individuals who donated their surplus to another individual might do so out of a long-term attitude that they will get a barn built for them by the community if it comes time that they need one. Or they might simply do so out of a generous spirit.

For the barn raising project that is Linux, the contribution per individual can be low enough that people can contribute to the project even while holding a full time job unrelated to the project. Since everyone benefits immediately, the incentive does not usually rely on the “I'll get paid back when I need a barn”, because everyone gets a copy of Linux.

Instead, the incentive is often that the people contributing to Linux love programming, with the functional payoff that everyone can get a copy of the useful code. A secondary effect that amplifies this incentive is the acknowledgment that comes from writing code that huge numbers of people will use. Pride in workmanship encourages people to contribute the best code because it will then be used by more people, giving the contributers more incentive.

It is an incentive system that thrives on nothing more than personal contribution directly. Only secondarily does it rely on economic incentive, which can occur when someone who contributes great code is hired to customize it or change it or alter some in house software to use it.

Historically, barn raisings have been rare or of a limited scope. There are a number of gift economies that have been established around physical objects, but usually within a limited community size. Linux is the first planet-wide gift economy. And it is made possible because the cost to contribute to the project is low. Most programmers own a computer and internet connection at home, so the equipment is a sunk cost. All they need to contribute is their time and brainpower. The world wide web makes wide and cheap distribution possible. If Linux were restricted to a paper-only distribution system, the cost of distribution would make it impossible to be a sustainable gift economy.

The way that printing presses made it possible for people to make a living as authors, the information age (computers plus internet) made it possible for people to contribute to massive barn raising projects such as Linux.

3.3.3 Galen's Trust Competes with Preston Corporation

As Galen's trust fund grew, it had the effect of allowing people who had the skills but not the equipment to compete for bounties. Competition was good for the community because it pushed bounties down. But rather than focus on making itself faster and more efficient to win bounties, Preston Corporation instead staged a multi-pronged attack on the competition, visiting the mayor's office again, and bad-mouthing Galen's trust fund, among other things.

In 1991, Linus Torvalds released the source code for a UNIX-style kernel. A kernel is basically the brain/switchboard of an operating system. A working kernel made a complete operating system enter the realm of possibilities. Making a complete operating system became an idea “crazy enough to work”. Linus called his operating system Linux. The code was released under GNU-GPL, and people started working on it.

Linux became popular for web servers because web servers didn't need all the fancy application software like word processors, spreadsheets, and the like. Web servers only needed to serve web pages. And to be a web-based company you needed a lot of computers and software for each computer. And because Linux was free, it was popular for web servers. Zero cost and a lot of functionality.

In the 1990's, Microsoft sold web-serving software on a per-computer basis. If it cost N to put software on one computer it cost 10xN to put software on 10 computers.

In the 1990's, Linux, which was available for free, was starting to compete with Microsoft's commercial software.

3.3.4 The Halloween Documents

By 1998, Linux was competing with Microsoft server software enough that some internal memos got passed around at Microsoft that talked about how to kill Linux. The memos were leaked and posted on the Internet. The memos were confirmed to be valid. And because they were posted on October 31, 1998, they became known as the “Halloween Documents”.

In the “Halloween Documents”, employees of Microsoft Corporation acknowledge that Linux was successfully competing against their commercial software, and they discussed, among other things, the best way to stop Linux. To quote:

Open Source Software (OSS) projects have been able to gain a foothold in many server applications because of the wide utility of highly commoditized, simple protocols. By extending these protocols and developing new protocols, we can deny OSS projects entry into the market.”

A “commodity” protocol simply means a free protocol, one that anyone can use. When two computers need to communicate data, they can do so with many different protocols. Some are freely available and anyone can use them. Some are patented or proprietary in some way and people have to pay money to get a license to follow that protocol.

Although there were freely available protocols to handle most of the things you might want to do with a computer, Microsoft realized that if they came up with a patented or proprietary protocol, Linux would not be able to afford to purchase the rights from Microsoft to use their proprietary protocols.

The incentive system for Linux relies on lowering the cost that an individual needs to contribute for the project as a whole to have a successful payoff. By creating proprietary protocols, Microsoft realized that it could possibly raise the cost for Linux to succeed beyond what individual contributers could afford.

In our story of Eureka, Preston reacts to competition from Galen's trust fund by getting the mayor to allow bounty hunters to purchase exclusive bounty rights to land. By raising the cost to stay in business, Preston attempted to push Galen's trust fund out of the playing field.

This “land grab” occurred in our history of intellectual works with the acceptance of software patents.

3.4 A Metaphor for Copyright and Patents

The bounty hunter metaphor is a good description for the incentive system for intellectual works. What it doesn't do well is describe the difference between the two kinds of intellectual works: inventions and writings or how their incentive systems differ. The bounty hunter metaphor could be extended to describe written works as “tips and information leading to the arrest of a bad guy”. Patented inventions could be described as “the act of physically capturing a bad guy”. But the metaphor also lacks a clear description of concepts like “Public Domain”, proprietary works, and the requirement in the U.S. Constitution that intellectual property laws must “Promote Progress”. Progress could be described as “fighting crime” but it is a little too abstract.

What is needed is a separate metaphor for describing how all these abstract concepts relate. How do written works that get copyright bounties differ from inventions that get patent bounties? How does Public Domain differ from Proprietary works? And how does it all relate to “Promoting Progress” of science and art?

The metaphor I'm going to use for all these concepts is called “Map Makers and Miners.” I'll describe it shortly, but keep in mind that when I talk about the incentive system, I'll use the “Bounty Hunter” metaphor. When I talk about the abstract aspects of copyright, patent, public domain, and progress, I'll use the “Map Makers and Miners” metaphor. Together, these two metaphors describe the vast majority of all the concepts in intellectual works. And switching back and forth between the two metaphors may happen without much warning or notice.

3.4.1 Map Makers and Miners

Get a sheet of paper and a pencil. Draw a circle in the middle of the paper. Inside the circle, draw a large dot. Label the dot “Eureka”. Label the rest of the space inside the circle “Public Domain”. At the four edges of the paper, write “Uncharted Territory”, “Unknown”, “Mystery”, and “There be Dragons”.

You now have a map of all the territories around Eureka at the beginning of its history.

The land is a metaphor for the abstract ideas, concepts, writings, and designs. And Eureka doesn't have the same kind of property laws as we do. In Eureka, all publicly known land is Public Domain. Anyone may walk on it, travel over it, and explore its resources. Abstract ideas naturally work this way. If they are publicly known, anyone can think them, use them, modify them, or investigate them. So, Eureka treats commonly known land as Public Domain rather than allowing it to be deeded up to individual property holders.

In this metaphor, land represents abstract ideas. This is somewhat problematic because land is concrete and abstract ideas are abstract, but work with me for a little while.

Now, the game theory scenario is still a Hostage Scenario of sorts. The more land that is publicly known and mapped, the more the whole population benefits. However, unexplored territory around and about Eureka is dangerous. If an individual takes a risk to explore some land, map it, and bring that information back to Eureka, then the whole community will benefit, but the individual has no way to make back his expenses.

Without any incentive system, individuals do not have a monetary incentive to take the risk to explore dangerous territory because any known land immediately becomes public property and the individual has no way of making back the time and energy he spent exploring and mapping the area.

This scenario happens in horror movies all the time. Throw a dozen characters in a room together. Establish that there is a monster somewhere in the house and it is trying to kill the people in the room. If one person goes out and discovers where the monster is, the rest of the group benefits, but the individual may very well end up the monster's next victim. The characters in a horror movie should realize that the rule for survival is “don't split up group”. It's a good way to survive. But then you wouldn't have much of a movie.

3.4.2 Progress: Expanding the Known Universe

Eureka's solution is still that of a Bounty, but rather than catching a bad guy, in this metaphor the reward is given to explorers, map makers and miners.

How does the system work?

Pull out that map you drew earlier. Now, say that Eve goes out and explores some area beyond the circle of known territory. She goes out and risks her time and energy to chart all the nooks and crannies of a section of land just outside what is known. She then comes back to Eureka and registers her map with the mayor's office. Take your map, and draw a small half-circle on top of the bigger circle marked “Public Domain”. Your drawing should look like a snowman made out of two balls of snow. Inside the small half-circle, write “Eve's Map”. Eve has now expanded what is known by the people of Eureka.

Now, the way Eureka designed its incentive system for explorers and map makers is that Eve gets exclusive rights to her map. If folks want to explore this newly discovered territory using her map, they have to pay her for a copy of her map. But exclusive rights to a map does not mean that other people cannot explore the land on their own. If Eve charges too high a price, Frank, who is also a map maker, might decide he could map the same territory and sell a cheaper map.

At some point, the map maker's exclusive rights to their version of the map expires, and the map becomes public domain. Take your map and erase the line that separates “Public Domain” from the part labeled “Eve's Map”. Once you erase that line, erase the label “Eve's Map”. The Public Domain has now grown in size. This is the definition of “Progress”.

The U.S. Constitution gives Congress the power to create incentive systems to writers and inventors, but only if the incentive system promotes the progress of science and the useful arts. Progress is defined as adding works to the public domain. The incentive system allows creators to hold their work exclusively for a period of time so that they can make back the time and labor it took them to create it, but then the work becomes Public Domain. Progress is eventually achieved.

This is the final argument against perpetual copyright and perpetual patents: Progress does not occur if the work never enters the Public Domain. Perpetual copyrights means any benefit from the work is limited to whatever the copyright holder decides to allow.

3.4.3 Map Makers are Writers

In this metaphor, map makers are like writers, and maps are like writings. When a writer discovers a new territory and writes about it, they get exclusive rights to their writing. If people want to read about this new territory, they have to purchase the book from the author. But another writer could explore the same territory and write his own book.

When Edgar Allen Poe wrote “Murder in Le Rouge Morgue”, it was a story written in a new territory called “mystery”. No writer had ever explored that territory before. Poe's story was one mapping of that territory. Since Poe wrote that story, other writers have tried their hand at writing mystery stories, exploring that territory, and mapping out their version of the land for readers.

A writer does not get a monopoly on the territory. They get a monopoly on their map. The territory is the abstract. The writing is one person's particular description of some part of that territory put into specific language.

Eve explores some new territory and creates a map of it. She gets exclusive rights to her map, so if anyone wants to sell a copy of her map or include her map in with their map, they must pay Eve whatever she demands as a royalty.

Frank is also an explorer and decides that Eve is asking too much money for her map. Frank decides to go out into the same territory and create his own version of a map. He can look at Eve's map before he leaves Eureka, but he can't take it with him. He has to take all the same risks that Eve took and he has to do the same sort of work Eve did to create his own version of a map. Frank can then sell his own map in competition with Eve.

Map makers get exclusive rights to their map, not the territory that it describes. Different map makers can explore the same territory and compete against each other to provide good maps of an area as cheaply as possible. Competition is encouraged by granting exclusive rights to the map, but allowing anyone to explore the same territory and create their own map. Eventually all new maps enter the Public Domain and progress is achieved.

3.4.4 Miners are Inventors

Miners have found gold and other valuable deposits deep underground in the land around Eureka. To encourage people to explore and find these deposits, a miner may stake a claim on any mine that has gold or something else in it. Since Eureka normally treats all land as Public Domain, anyone who dug and explored and eventually found a mineral deposit would have no way of recouping their losses if anyone could walk in and walk off with the gold. A miner's claim gives the miner possession of the contents inside their mine for a period of time, long enough for them to be able to make a profit exploring and mining. After that time, the mine becomes Public Domain and everyone may benefit from it.

Gold in this metaphor represents the abstract knowledge that is contained in an invention. While gold in a real mine would eventually run out, the gold in metaphorical Eureka is abstract and never runs out. Since it never runs out, it doesn't behave like “property” or “things” as we know them in real life. It makes the metaphor a bit confusing, but it's better than a completely abstract metaphor.

A miner's claim represents a patent, which grants an inventor exclusive rights to their invention.

Miner's claims work similar to the way “map rights” do for map makers. They act as a bounty, an incentive, to break the Hostage Scenario stalemate that would otherwise encourage everyone to do nothing. By offering this incentive, individuals take the risk to explore and mine, they are given exclusive rights to their mine for a time, and then it becomes Public Domain, which then results in progress.

3.4.5 Copyright Versus Patent

So how do map makers and miners differ? How do copyrights and patents differ?

The answer is in a side-view of Eureka and the surrounding territories.

There are two layers of reality represented here: language and physical. These two layers represent the difference between writings and inventions, between copyrights and patents.

Language, logic, and mathematics give a medium through which people can communicate and express themselves. Maps and writings are an individual's interpretation of the land put into fixed form. You can have many different maps of the same land. A writing is a human expression put in paper and ink, oil and canvas, or recorded on an audio track. There are many ways to express the same territory.

Nature provides a physical and structural medium that operates independent of language. The Earth moves around the sun whether or not any human speaks that fact. Nature operates independent of communication, independent of human expression, independent of human intervention. Nature “is”.

An invention is some structural device which takes some human understanding of nature and performs some function on a structural level. A photo voltaic cell is a device which takes sunlight and converts it into electricity. But someone had to understand some physical structure that could convert light into electricity. This is the basis for patents: discovering something previously unknown about the physical structure of the world.

Once someone discovered that polycrystal silicon in a particular configuration will convert light into electricity, it becomes a known fact of reality. A patent gives the person who discovers this fact exclusive rights to their discovery. The difference between a patent and copyright is in the nature of the discovery.

A patent gives the inventor exclusive rights to any physical device which uses polycrystal silicon to convert light into electricity. While there can be many maps for the same territory, there is only one physical reality. So, a patent must grant an exclusive right to this configuration for this function: polycrystal silicon converting light to electricity. A patent grants exclusive rights to the thing itself. A patent encourages competition by making the DESCRIPTION of the invention Public Domain. Anyone may study the invention and possibly discover some different way to accomplish the same thing. And this encourages some competition among inventors.

Notice how this differs from copyright. Copyright gives exclusive rights to someone's EXPRESSION within language. But there are many ways to express the same things. There are many ways to map the same land. Copyright gives a writer exclusive rights to their expression, but encourages competition so that other writers can express their version of an idea.

A map maker gets exclusive rights to their map, not the land that they mapped.

A miner gets exclusive rights to the part of nature that they unearthed in their mine, but the map of the mine becomes public. Patents give the inventor exclusive rights to one specific function of nature, but everything about that part of nature must be revealed to the public. Anyone may talk about or learn about the discovery, but only the patent holder may manufacture and sell the invention itself.

For a patent to be approved, the inventor must describe their invention in complete detail, explain how it works, explain what function the device performs, and apply for a patent. The patent office then looks at the application and must determine that the thing-itself being described is something new about nature, rather than simply some new description of a previously discovered invention. Because there are many ways to express the same territory, the patent office must examine every application and determine if the application is describing something new, or if it is describing an old idea under a new expression. If the discovery is determined to be new, then the patent is granted.

Miners care about the gold, the thing itself. And it's that thing they want to sell to people to get their money back. They want exclusive rights to the thing itself so that no one else can come in and sell the gold that they discovered. In exchange for getting exclusive rights to the thing, the gold, the miner must give a complete map to the public that shows the mine entrance and what tunnels to follow to get from the surface down to the actual gold. This encourages competition among miners, forcing a miner to reveal all there is to know about their claim. This also prevents miners from moving in on other miner's claims, saying its a different vein when actually its a different description, a different map, to the same gold.

A patent grants the inventor exclusive rights so that no one else may put polycrystal silcon in the configuration and use it to convert sunlight to electricity. But the knowledge expressed in the patent application of how this works becomes public domain.

3.4.6 Gold On the Ground

In our Map Maker and Miner metaphor, a time came when the map makers discovered a territory that had gold and other precious metals lying out on the open ground. They decided to call this land “Computers”. The laws of Eureka stated that all Land was Public Domain. Anyone could travel over it or use it as they saw fit. The map makers registered their maps with Eureka and many map makers competed with each other which drove the price of maps down.

Lots of people wanted to travel to the land of Computers, so they bought maps and went there. When they saw gold and silver and gems just lying on the ground, they picked it up and used it for their own benefit.

Some folks, however, tried to put a miner's claim on the gold, so they could own it and make money selling it, rather than letting people just pick it up on their own. At first, the miner's claim office scoffed. The gold was lying on the open ground. These folks who were trying to put claims on it didn't do the sort of work it took to dig a mine deep into the ground. The initial claims were rejected. But the idea of making money pushed more people to make miner's claims.

And then some folks got someone friendly to their cause onto the Mine Claims office, and suddenly gold lying about on the open ground was declared an “open pit mine”.

Map makers got exclusive rights to their maps, but the land remained open to the public. Anyone could travel over it. Anyone could use it as they saw fit.

Miner's claims however prohibited travel in the mine. Up until this time, it hadn't really been a problem, because mines were underground and no one really wanted to go into a deep, dark tunnel for no reason. The only benefit to going into a mine was for the gold, and the gold was exclusive property of the miner.

But when the land of computers was declared an open pit mine, suddenly people came in, filed miner's claims, and fenced off large swaths of land, picking up the gold that lay on the ground, and selling it to people who could have picked it up themselves the day before.

What had been an open range of Public Domain land around Eureka had suddenly been fenced off by calling it an open pit mine. Declaring open land a mine is equivalent to permitting the patenting of language, logic, and mathematics. And that's exactly what happened in the U.S.

Because they could fence off their open pit mines, they could prevent map makers from coming in and studying the land. Because no maps could be made, no one could easily explore the territory. And because maps of the land around the open pit mine were unavailable, other miners were unable to compete with anyone who had established an open pit mine. The system that encouraged competition among miners and map makers had been destroyed by giving one miner's claim a complete monopoly on the land, the maps, the mines, the minerals, and anything else of value within the claim.

3.5 Patenting Language

The idea of patenting language had been rejected for almost as long as patents were allowed. Mathematics was never allowed a patent because a single formula could have countless real world applications and patenting one formula would then impede the progress of those real world applications from being developed, rather than promote progress.

Einstein's E=mc**2 formula describes a relationship between mass and energy that might be used for designing a particle accelerator, a nuclear reactor, a space ship engine, and other true steps of progress. If every formula that went into every invention were allowed a patent, the number of license fees you would have to pay to build a simple mousetrap would be astronomical. (spring tension formulas, metal fatigue equations, recipes for different types of cheese, etc) That would kill progress, not promote it.

Mathematics was also never allowed a patent because it isn't a real world application. While Einstein's formula is interesting, it doesn't actually tell you how to build a fusion reactor. Patents had always required the inventor to discover something about the real world, not simply play around with logic and symbols, and maybe it has a real application, maybe it doesn't.

Software is nothing more than language, logic, and mathematics. Software and computers had been commercially available since the 1950's. And although there was plenty of pressure to get software patents, the patent office and the Supreme Court shows a history of resisting them.

1972 - Gottschalk v. Benson – A patent application for an algorithm to convert binary coded decimal numbers to pure binary numbers was denied by the Supreme Court. The Court rules that granting a patent on an algorithm for a general-purpose digital computer would overly monopolize that algorithm.

1975-Parker v. Flook – A patent application was denied because the only thing new about the device is a mathematical formula it used. A Supreme Court Judge explained that had the Pythagorean Theorem been newly discovered and put into a patent application, it would not deserve patent protection, even if the applicant then showed how the Pythagorean Theorem could be used for surveying techniques. A mathematical formula cannot be patented.

3.5.1 Starting the Slippery Slope

The Supreme Court began the slippery slope to approving software patents in 1981 in the Diamond v. Diehr case. Diehr had built a machine for curing rubber. The only thing new about the curing machine was that some of the physical parts of the curing machine had been replaced by a computer and software. Diehr's machine didn't reflect any new discoveries about curing rubber. It didn't reflect any new understanding of natural science. All it did was replace gears and levers with a computer hooked up to sensors and servos to do the exact same function that the gears and levers did.

The patent office had denied the patent application. But it was 1981, and it was a time when computers were the greatest thing since sliced bread. The Supreme Court must have been infatuated with computers when it granted Diehr a patent for his machine. Though no new science was learned about curing rubber, replacing gears and levers with a computer was somehow never thought of before and deserved a patent. The decision made by the court was that software could be patented if it were hooked up to a physical machine. But apparently no requirement was needed that anything new actually be discovered in that process.

However, not all the Justices agree. The dissenting opinion included the following:

"A fair reading of the entire patent application, as well as the specific claims, makes it perfectly clear that what Diehr and Lutton claim to have discovered is a method of using a digital computer to determine the amount of time that a rubber molding press should remain closed during the synthetic rubber curing process. There is no suggestion that there is anything novel in the instrumentation of the mold, in actuating a timer when the press is closed, or in automatically opening the press when the computed time expires. ... Their method of updating the curing time calculation is strikingly reminiscent of the method of updating alarm limits that Dale Flook sought to patent."

"The broad question whether computer programs should be given patent protection involves policy considerations that this Court is not authorized to address. ... That question is not only difficult and important, but apparently also one that may be affected by institutional bias. ... Industry representatives have taken positions properly motivated by their economic self-interest. Notwithstanding fervent argument that patent protection is essential for the growth of the software industry, commentators have noted that "this industry is growing by leaps and bounds without it."

Software could now be patented if it hooked up to physical machinery. But even that limitation would fall a mere decade later when the economic self-interests of industry pushes them to buy their way into getting software patents of any kind.

Time to switch back to our story of Eureka's bounty hunters for a while.

3.5.2 Land Grab

In our story of Eureka, Preston got the Mayor to appoint Darrell Dawson to be Commissioner of Land Deeds. Dawson had been an independent contractor who had worked for Preston on many occasions and had proved his loyalty to Preston Corporation. Dawson used his appointment to change the way the Deeds office handles deeds without having to go through the City Council, to the direct benefit of Preston Corporation.

Dawson allowed bounty hunters to buy “bounty rights” on any undeeded land where a bounty hunter caught a bad guy. This allowed Preston to squeeze out the competition from Galen and his trust fund. Because Galen was trying to catch bad guys for less, he wouldn't be able to afford to buy the land. Preston would be able to afford it, and as he slowly accumulated land and it's bounty rights, he would be able to limit where Galen could chase bad guys.

In 1994, President Clinton appointed Bruce Lehman as Commissioner of the Patent and Trademark Office. At the time of his appointment, Lehman was a former lawyer-lobbyist who helped represent the intellectual property interests of Hollywood and software companies--including Lotus and Microsoft.

From Bruce's own words at

"For ten years prior to joining the Clinton administration, Lehman was a partner in the Washington, D.C., law firm of Swidler & Berlin. There he represented individuals, companies, and trade associations in the areas of intellectual property rights. His clients were drawn from the motion picture, telecommunications, pharmaceutical, computer software and broadcasting industries."

If that doesn't tell you of Lehman's position, read a little further:

“Lehman worked for nine years in the U.S. House of Representatives as counsel... Lehman was the Committee's principal legal adviser in the drafting of the 1976 Copyright Act,

Lehman was the principle legal adviser to the congressional committee that passed the 1976 Copyright Act. This act raised the bounty on copyrights, extending them from 56 years to 70 years, just in time to keep “Steamboat Willie” under copyright.

The patent office is charged with the task of making sure that patent applications are sufficiently new and useful to deserve patent protection. The Patent Office is to patents, the way the FDA is to new medicines: they are both government agencies intended to prevent profits from overriding public good. The way the FDA is supposed to hold new medicines to certain minimum standards of safety, the patent office is supposed to hold patent applications to certain minimum standards to make sure they deserve a patent.

However, Bruce Lehman spent at least 10 years on the payroll of the folks he would be required to hold to these minimum standards, and 9 years counseling congress to raise copyright and patent bounties. The Senate did not seem to notice the obvious conflict of interest of this appointment and confirmed Lehman's appointment unanimously.

In 1995, as one of his first major official acts, Bruce Lehman had the Patent Office issue "Examination Guidelines for Computer Implemented Inventions", which allowed software of any kind be patented. By doing this, Bruce Lehman immediately lowered the very standards the patent office required of inventors to get a patent. And he did this without congressional review or an impartial court of law.

Lehman changed the patent office policy so that software was now eligible for patent protection independent of whether it related back to any new discovery in the physical world. Generic algorithms in software could now be patented because of Lehman's decree. A patent no longer required any new understanding of the structural world, but could be a generic formula of mathematics, symbols, and logic.

The Supreme Court rulings of Gottschalk v. Benson(1968) and Parker v. Flook (1975) were effectively overturned by a former lobbyist for the software industry. Congress did nothing to change the law to support the Supreme Court rulings, or override Lehman's decree, and so software of any kind could now be patented.

3.5.3 Linux Competes with Microsoft

In our story of Eureka, the County Deeds office changed its policy to allow a bounty hunter to purchase “bounty rights” to any land on which they had captured a bad guy. This raised the cost of being a bounty hunter and made it difficult for Galen's trust fund to bring in bad guys cheaply. This twist on the bounty incentive system favored whoever was the most dominant bounty hunter rather than encouraging competition. Whoever had the most money could buy more bounty rights and lock out the smaller competition, further monopolizing their dominant position. Once Preston bought the bounty rights to a piece of land, he could stop Galen from chasing bad guys if the bad guy went on to his property.

Software patents are a land grab like Eureka's bounty rights. Patents cost a lot of money and time to secure. If a patent is awarded, the winner is granted a monopoly on that functionality and can legally prevent anyone from implementing the same functionality in their software. Software patents raise the cost to compete to a new minimum, meaning that programmers may not be able to afford to give away their code, even if they wanted to.

Before 1995, Linux could implement the same functional protocols as Microsoft if it wanted to do the work. Any software protocol used as a generic algorithm to transmit data back and forth had been unpatentable up until this point. If Microsoft created a new protocol, Linux could implement it as well as long as Linux did it in its own code.

In Eureka, Map Makers had exclusive rights to their maps. But anyone else could go in and do the work to create their own map from scratch. Map Makers had exclusive rights to their maps, but the land remained public domain. Software written by Microsoft was a map. The functionality underneath was the land. And every time Microsoft wrote software with new functionality, someone could do the work to create new software, a new map, that provided the same underlying functionality.

But software patents would allow companies like Microsoft to make land grabs into functionality. By coming up with a new protocol and patenting it, Microsoft could put a miner's claim on the open ground and prevent Linux from implementing that same protocol.

A community Barn Raising like Linux, which depends on user contributions, cannot afford to secure patents, nor can it afford to buy the licensing rights to implement the functionality in a patent. Linux will find it especially difficult to afford a patent owned by Microsoft when Microsoft's Halloween Documents indicate their intent to decommoditize protocols in order to kill off Linux.

Patents are expensive, and so favor the dominant players. Rather than encourage competition, software patents give the dominant player more dominance.

3.5.4 Mute Patents

There is a subtle side effect to software patents: they prevent discussion of the idea.

If someone patented a new way to cure rubber, it would be possible for scientists to model this invention and the underlying chemistry using computer software. They wouldn't be able to manufacture a curing machine because the patent would prevent that. But they could study it and possibly discover a different way to cure rubber that didn't rely on the current patent.

Patents of physical inventions allow scientists to discuss it in language, encouraging competition.

In the Map Maker/Gold Miner metaphor, the mine is the exclusive property of the miner, but map makers are allowed to create maps of the land on the surface.

Allowing software to be patented means that to study the invention, you have to have the invention. And if the patent holder doesn't want you to study his invention (and he likely won't because it means you might end up competing against him) then you can't model his invention in software because his invention IS software.

When a physical invention is patented, scientists can discuss it and model it with software without the Inventor's permission, because the LANGUAGE that describes the invention is Public Domain, only the physical invention is private property.

When software is patented, other scientists cannot discuss the patent in any language rigid enough to be understood by a computer because if a computer can run it, it becomes software, and the patented invention IS software. Legitimate research is restricted under software patents.

3.5.5 Software Patents: Bounty Hunters Setting the Bounties

The question again is “What incentive system SHOULD exist?”

The bounty hunter algorithm indicates the bounties are too high with software patents.

The community offering the bounty should exert downward pressure on the amount of the bounty. The only time a bounty should go up is if it is so low that no one is interested in collecting the bounty. Bounty hunters should not be allowed to set their bounty since that is functionally the same as if they could cut the community cake and select which piece they get to take.

In Diamond v. Diehr, a Supreme Court Justice noted that the push to allow for the patenting of software “may be affected by institutional bias. ... Industry representatives have taken positions properly motivated by their economic self-interest. Notwithstanding fervent argument that patent protection is essential for the growth of the software industry, commentators have noted that "this industry is growing by leaps and bounds without it."

If the bad guys are being hauled in, why raise the bounty being paid? If the progress of the science and useful arts for software and computers is progressing successfully without software patents, why add software patents to the corporate bounty?

Linux and other Barn Raising projects prove that an incentive system for software does not require software patents. Linux is considered a rock-solid piece of software and it was developed within an incentive system that relied on contribution. If the advancement and progress of software development can be promoted within an incentive system where people donate their time and energy to create a work that is freely given away to the public at large, why raise the bounties to offer software patents?


Because the Bounty Hunters have set the bounties.

The algorithm to determine the bounty requires that the community keep the bounties as low as possible.

But the bounty hunters figured out a way to exert their own pressure to push their bounties upward. They got someone who had been on their payroll assigned to the government job of cake-cutter. Rather than pushing to offer as small of a slice of cake as possible, this cake-cutter gave away entire sheets of cake and was rewarded handsomely for his efforts.

Bruce Lehman spent ten years lobbying for the intellectual property interests of corporations like Microsoft and the movie industry before becoming Patent Commissioner. As Patent Commissioner, Lehman used his position to push public policy to his former employers' favor and bypassed much of the political process. The Constitution says Congress has the power to create intellectual property laws, not some appointed bureaucrat.

Software Patents only exist today because some bounty hunters figured out a way to set the bounty. Computer software was progressing just fine without software patents. But corporate software bounty hunters realized they could make more money and push out the competition if they could get software patents included in the bounties being offered.

Software patents are nothing more than corporate subsidies, corporate welfare, set by the corporations themselves.

3.5.6 An End to Software Patents

Software by itself should not be patentable.

If the software implements a specific application to some real world science, then that entire invention may qualify for a patent reward. For example, if the software implements some new understanding of how to cure rubber that was not known before, then that software in combination with the machine that runs it may qualify for a patent.

MP3 audio compression may qualify for patent protection because it reflects not just numeric compression of numbers but a discovery of how people perceive sounds. It shows a discovery about the natural, physical, structural world around us.

But software by itself does not warrant patent protection. Software especially that runs on a general purpose computer, i.e. the computer on your desk, that simply manipulates data through some algorithms, should not be awarded patent protection. Using software patents to mute all discussion of the invention is a bald abuse the constitutional intent of patent law. Progress is not promoted by awarding a monopoly that prevents all competition.

Language, logic, and mathematics should not be patentable. Declaring open pit mines to fence off gold lying on open ground is missing the point of the patent incentive system. Inventors are supposed to get patents for discovering something new and useful about the physical universe, not get rewarded for picking up a gem lying on on the ground.

A protocol for data communication does not deserve patent protection.

A new method for communicating could deserve patent protection. For example, the telephone is an invention that allows people to communicate sound by electricity over a wire. It wasn't just a different protocol of exchanging data, it was a discovery in how sound could be translated into electricity by a microphone, transmitted over a wire, and translated back into sound by a speaker.

That isn't just a protocol. That is a discovery in natural science of how to build a microphone out of carbon particles and a speaker out of an electromagnet and transmit sound over wire with electricity.

Software patents have been used as a land grab by the dominant players to maintain their dominance. Software patents do not require any new discoveries about the world around us, they only require enough people to code up a protocol that no one has done yet, and the money to pay the lawyers to get a patent for it.

Famous inventions that taught us something about our world and received a patent include the light bulb, the telephone, radio, the transistor, internal combustion engines.

Famous software patents are what? Can't name any? Probably because they aren't any great new discoveries, but instead were simply a land grab of what would have been public domain functionality.

One famous example of a software patent is the “One Click” patent, which lets a customer go to a website and purchase something buy clicking on a button with a mouse. I've been told it's really much more advanced than that, but I'm not a web programmer.

3.5.7 Impeding Progress with Language Patents

What incentive system should exist?

Congress may grant authors and inventors exclusive rights to their Writings and Inventions for a limited time ONLY to the extent that it PROMOTES PROGRESS in the arts and useful sciences.

Two Supreme Court cases reinforce this requirement.

1882 - Atlantic Works v. Brady - The Supreme Court rules in a Patent case that a Patent cannot be an obvious extension of already existing Inventions and Discoveries. If insignificant discoveries are patented, it actually IMPEDES PROGRESS, not PROMOTES it.

"It was never the object of patent laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends to obstruct rather than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax on the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of unknown liability lawsuits and vexatious accounting for profits made in good faith."

1966 – Graham v. John Deere – The Supreme Court ruled that the incentive system of patents is constitutional only to the extent that it promotes progress. Awarding patents simply because someone can make a profit on it is unconstitutional.

"Congress, in the exercise of the patent power, may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must "promote the Progress of useful Arts." This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity requires reference to a standard written into the Constitution."

Patents on language impede progress rather than promote it. They restrict research rather than further it. They promote market domination rather than encouraging competition. They operate as corporate welfare rather than acting as a fair bounty for services rendered.

If software development would still occur without software patents, then the bounty is set too high. The Linux operating system and all of its applications contributed by programmers in a global Barn Raising show that progress in software development does not need software patents to break the Hostage Scenario stalemate, and that software patents can actually IMPEDE the Barn Raising by raising the cost to contribute.

3.6 Digital Millennium Copyright Act

Bruce Lehman, Patent Commissioner, didn't sit on his laurels after his decree that the patent office shall award software patents. He tried to bring the Copyright Office under his control, in an effort to rewrite copyright laws for his former Hollywood paymasters. But this required an act of Congress, and Congress declined.

Not to be hindered by the representatives of the people, this bureaucrat then did an end run around Congress, and went on an international lobbying effort, stumping for changes to the World Intellectual Property Organization, an international treaty that the U.S. and many other nations belonged to. In 1996, the U.S. Patent Commissioner went on a world-wide whirlwind tour getting other governments to agree to higher bounties for copyright works. Once this was pushed through international treaty, the U.S. had to enact legislation to stay in compliance with WIPO or withdraw from the treaty.

Lehman then lobbied Congress to pass the Digital Millennium Copyright Act (DMCA) which enacted all the requirements of the WIPO plus added some more.

Notice the historical significance here. The Patent Commissioner was meddling with copyright law, which was the responsibility of a completely different office. The Commissioner of Miner's Claims was sticking his nose into the Bureau of Maps and changing how the Map Bureau did business.

The part of the DMCA that Hollywood and the record industry was drooling to have was called the “anti-circumvention clause”. In 1997, the first DVD players hit the market. And Hollywood had learned a lesson from CD players and VCR's.

CD players and VCR's encoded their content in a simple format that anyone could read. Which meant anyone could make copies. When VCR's first became available, it allowed consumers to make copies of television shows that had been broadcast in an unencrypted format, and Hollywood didn't like that. In testimony to the House of Representatives in 1982, the president of the Motion Picture Association of America, Jack Valenti, stated:

"I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone." -- Jack Valenti, 1982

Unfortunately for Jack Valenti, the Supreme Court handed down the Betamax decision two years later in 1984, ruling that copying television shows for home use is "Fair Use", and that manufacturing VCR's to facilitate that copying is legal.

Hollywood didn't want you to be able to make copies. It wanted to charge you for every copy of a work you have in your house, even backup copies. In November 2003, Jack Valenti said:

"If you buy a DVD you have a copy. If you want a backup copy you buy another one."

Bruce Lehman, Patent Commissioner, stood firmly against “Fair Use”, even though it was really a concern of copyrights, not patents. However, Bruce didn't let that stop him when he wrote the Clinton administration's White Paper on IP, titled "Intellectual Property and the National Information Infrastructure (NII)”:

"Some have argued that because it may now be technically feasible to "meter" each use of a copyrighted work, and to charge a user a fee for the use, the concept of fair use has no place in the NII environment.” -- Bruce Lehman, 1995

When Lehman said “Some”, he was including himself in that group.

Hollywood and the music industry didn't want to make the same mistake twice. They didn't want the DVD to be a repeat of the VCR and CD players. They didn't want their content to go out on the disc with a plain encoding that just anyone could read. And they didn't want the courts to tell them they had to allow “Fair Use” copying.

So, they decided to encrypt the content on their DVD's. But they knew their encryption wouldn't last too long before someone cracked it. So they wanted a law that would make it illegal to unencrypt anything that was encrypted.

And so the “anti-circumvention clause” became part of the DMCA.

3.6.1 The Case For the Anti-Circumvention Clause

There is one argument FOR the anti-circumvention clause: it prevents copyright infringement.

What does the anti-circumvention clause say? It says that if anyone has encrypted anything then you can't decrypt it without the permission of the person who encrypted it. DVD players and DVD discs were designed with encrypted content. The movie is encrypted on the disc, and the player is designed with the electronics needed to decrypt the content and show the movie.

Since you can't legally decrypt the content without permission, the only way you can legally decrypt the content is if you play it with an approved player. And an approved player won't copy it for you. It will only play it. So, it prevents copyright infringement. (Plug the output of your store-bought DVD player into your VCR and try taping a movie. It won't work because DVD players are designed to thwart VCR's. Take a home movie from your video camera and burn it onto DVD using your computer. Then try to find software that will let you read it back to your computer so you can edit it. Software like that can be downloaded for free from the web, but commercial companies won't sell it.)

3.6.2 The Case Against the Anti-Circumvention Clause

There are many arguments against the anti-circumvention clause. The Electronic Frontier Foundation (EFF) has a good website that lists the problems with the DMCA and the anti-circumvention clause here: It doesn't work

The first argument is that the DMCA doesn't work. In 1999, a Norwegian teenager named Jon Johansen reverse engineered the encryption on a DVD player he bought so that he could play DVD's on his Linux computer system. If any professional copyright pirate wanted to copy a DVD and sell it, they could do it too.

But the anti-circumvention clause is not meant to prevent professional copyright pirates, because professional copyright pirates are already breaking the law to make illegal copies of a work, so breaking the DMCA to make illegal copies is a non-issue for them. Furthermore, professional copyright pirates often use mass-pressing machines which duplicate the disc bit for bit without decrypting anything, meaning the DMCA will not apply to them.

Instead, the DMCA is meant to stop individual consumers from creating Fair Use copies of a work. The anti-circumvention is meant to overturn the Supreme Court's decision that allowed consumers to use their VCR's to copy programs and instead require consumers to purchase each and every copy, every time they want to watch a program. Bruce Lehman and Jack Valenti both made it clear that they do NOT want Fair Use copying. It Isn't Needed

Encryption isn't needed to prevent copyright infringement. When Napster first opened in 1999 as a file sharing website, it was shut down on the grounds that it was committing rampant copyright infringement. At the time, the files being copied without permission were mostly songs off of CD's compressed into MP3 format. These CD's weren't encrypted, so the anti-circumvention clause couldn't be used to shut down Napster.

However, Napster was shut down based on a good old-fashioned copyright infringement suit. The anti-circumvention clause wasn't needed to shut it down. It Kills Fair Use

When Jon Johansen figured out how the encryption worked on his DVD player, he did it so he could play DVD's on his Linux computer system. He had all the hardware and he owned the movie on a DVD, but he couldn't play the movie. So he figured out how the encryption worked and then wrote some software for his computer so he could watch a movie on his PC.

Since WIPO is an international treaty, Jon Johansen was arrested for this.

Well, he wasn't arrested for watching a DVD on his PC. What got the Hollywood attack dogs going after Jon Johansen was that he posted the code on the web so that anyone could watch a DVD on their Linux machine. And Hollywood didn't want people to convert their Linux boxes into VCR's.

Could Jon's software be used for copyright infringement? Yes, but the same could be said of a simple VCR. The thing about the VCR and Jon's code was that they both had legitimate uses exercising Fair Use (playing a DVD you legally purchased so you can watch it on your computer), rather than simply being about commercially-driven copyright infringement pirates.

But the “anti-circumvention clause” made circumventing encryption illegal, whether it was for Fair Use or not. It Creates Patent-like Powers Without the Mess

If you had a Linux box with a DVD drive and you either downloaded Jon's software or you wrote your own software to play a DVD on your Linux box, you would be breaking the anti-circumvention clause.

This means that the anti-circumvention clause is effectively a back-door patent, giving Hollywood an exclusive right to manufacture DVD players. No one else can build a DVD player, even if they have the components in their own home, because you need the permission of the person who encrypted the DVD to play their DVD.

The thing is that with a real patent, you actually have to invent something new, something that didn't exist before, something that is a substantial advance in science. And a DVD player is none of that. It's just a few tweaks on the old CD design. Even if a device IS patented, you can buy all the parts and assemble them yourself if you want. But the anti-circumvention clause makes that action illegal.

Here are a few examples where companies are using the anti-circumvention clause of the DMCA to wield patent-like powers:

In 1999, Sony, maker of the PlayStation video game, sued Connectix Corporation for its emulator program that allowed people to play Playstation video games on a Macintosh computer. Sony also sued Bleem for its Playstation emulator that works on Windows PCs. Sony claimed anti-circumvention violations because the games are encrypted. Connectix and Bleem pulled their products from the market. Note: you can play a PlayStation game on a regular PC with the right software, but the anti-circumvention clause effectively gave Sony a patent on it's Playstation, even if it contained no new discoveries.

In 2000, start-up software company Streambox developed the Streambox VCR, designed to time-shift streaming media (audio/video through your computer). The Streambox VCR competed with a streaming media player from RealNetworks. RealNetworks invoked the DMCA and obtained an injunction against the Streambox VCR product.

Skylink Technologies reverse engineered the encryption on garage door transmitters/receivers made by Chamberlain Group. Skylink manufactured replacement transmitters at a lower price. In 2003, Chamberlain Group used the DMCA against competitor Skylink Technologies.

The anti-circumvention clause was used in an attempt to enforce patent-like monopolies in something as mundane as a garage door opener.

In 2003, Lexmark added authentication hardware in its printers and toner cartridges that served no purpose other than to identify non-Lexmark toner cartridges and stop the printer from working if one was detected. Static Control reverse engineered the authentication and sold chips that would allow a competitor to sell a toner cartridge that would work in a Lexmark printer. Smartek bought the chips and used them in their toner cartridge, competing with Lexmark's cartridges. Lexmark then used the anti-circumvention clause to stop Static Control from selling its chips, which prevented Smartek from making toner cartridges that compete with Lexmark.

What will happen in the next few years is that an automobile company is going to get wind of this anti-circumvention clause. And what they'll do is build a car with an electronic lock in the hood that only they or a dealer can open. And then they'll sue any independent garage or car owner who tries to pop the hood without permission. You won't be able to work on your own car. And you'll have to go to a dealer for all your parts and repairs.

And won't THAT just promote the progress of science and the useful arts. It Has Stunted Independent Research

Computer security uses encryption as one of its cornerstone building blocks. If a company offers some sort of computer security device, such as a firewall or a data encryption program, it is generally a good idea to have an independent group look at the product and determine how good it is.

When you buy a car, stereo, television, or refrigerator, you might save yourself a lot of trouble if you check out Consumer Reports or some other independent group that will tell you how well the product stood up to standard testing in comparison with other products of the same type.

The anti-circumvention clause makes independent research and independent evaluation illegal.

If a company sells any sort of computer software or hardware that involves encryption, that company can use the DMCA to prevent any independent group from decrypting their product and comparing it with similar products on the market. The independent group must get the company's permission to do this, and no company is going to give permission unless they're going to get a good review. This makes independent research and independent evaluation impossible.

You must take the company's word for it that their product is good. A number of computer security products were independently reviewed by researchers, and when researches found security flaws in the design, the manufacturer used the Anti-Circumvention clause to force the researchers to take their work out of the public view.

3.6.3 An End to the Anti-Circumvention Clause

There is no legitimate argument for the anti-circumvention clause. It doesn't stop professional copyright pirates. It wasn't needed to shut down Napster when it first came online and enabled rampant copyright infringement by its users.

The corporate benefits, however, are a huge incentive for companies to keep it in place even to the detriment of the public good.

It kills Fair Use copying in every shape and form. If you want to play a song on your living room stereo and the stereo in your car, you'll just have to buy two copies of that song. The music industry is trying to convert its CD products over to music DVD's because music DVD's are encrypted and the anti-circumvention will allow them to sue anyone who builds a DVD copier.

The anti-circumvention clause has been used to attempt to capture patent-like powers on devices as mundane as garage door openers. It prevents competition. It monopolizes markets. It forces consumers to rely on dealers for parts and service and makes competition illegal.

It has chilled independent research and independent evaluation of products.

The anti-circumvention clause does not promote the progress of science and the useful arts. It promotes corporate profit, corporate monopolies, and corporate dependency.

The U.S. Constitution requires that any law passed by congress in the realm of copyright and patents must promote the progress of science and the useful arts, not suppress it.

The anti-circumvention clause doesn't have a constitutional leg to stand on and must be struck down.

3.7 Bruce Lehman Gets Corporate Donations

After he left his position as Patent Commissioner, Lehman started a lobbying group called "International Intellectual Property Institute" (IIPI) that was founded by corporate donations.

From the IIPI funding webpage (emphasis added by me):

"The IIPI was founded with donations from private corporations. These "capital contributions" supported the organization in its formative years."

After six years of using his government-paid position as Patent Commissioner to push a major rewrite of Intellectual Property law to favor bounty hunters and corporate interests, Lehman starts a company with donations from those very same corporate interests.

Perhaps it was a reward for his years of selfless public service.

3.8 Eureka's Prologue

We've now come to the end of the story of Eureka and its bounty hunters, map makers, and gold miners.

The story ends there, but reality keeps going.

3.8.1 Championing the Fight

There are two important organizations that I haven't mentioned yet, but who are championing a return to reasonable bounties and reasonable laws for Intellectual Property and for computers in general:

Creative Commons (CC) and the Electronic Frontier Foundation (EFF).

Creative Commons has crafted a spectrum of copyright licenses that authors can use to give away various rights to their works. Authors can use some licenses to legally grant their fans the right to trade copies of a work or create derivatives of the work as long as the fans don't make money doing it, while the author retains the commercial rights to their work. Another CC license allows authors to create Barn Raisings of their own, granting anyone the right to share the work equally.

Creative Commons was founded in 2001. As of 2005, there were over one million works on the Internet that were being offered under a CC license.

The Electronic Frontier Foundation (EFF) was founded in 1990 and has as its mission nothing short of defending individual rights against technological encroachment by the government and corporate interests. EFF has been fighting the DMCA since its inception, as well as other laws that affect electronic equipment.

3.8.2 Barn Raisings

I've already mentioned one of the first copyright-based Barn Raisings, namely Linux. Linux is very much a work in progress, with new features being added, new applications being written, all of which needs contributers willing to donate their time. People interested in contributing to the Linux project can start by looking here:

If you are not a programmer and have no interest in software development, you may still “contribute” to the Linux project by using their software. A major incentive for programmers to contribute is knowing that people use and benefit from their contribution. Free Linux downloads are available at the link above and also here:

Whether or not you use Linux, there are a number of non-software barn raisings that you can contribute to and/or benefit from.

Wikipedia is a free online encyclopedia. It offers nearly half a million entries in English. And it uses a user interface called a “wiki” which allows anyone easy access to add new entries or fix existing ones. Whether you contribute to it or not, it is an exceedingly useful reference for looking stuff up. All the content on wikipedia is available under an GNU copyleft license.

OpenOffice is a complete suite of software applications (word processor, spreadsheet, etc). It can be used on Linux or Microsoft operating systems. It is available for free download here:

4 Summary

Intellectual works are abstract works. In their natural state, anyone may manufacture, use, copy, distribute, or create derivatives of an intellectual work. This abstract nature of intellectual works creates a game theory situation called a Hostage Scenario.

The Hostage Scenario for intellectual works is that anyone could create a new intellectual work, but the abstract nature of the work means that any work is immediately available to everyone. Individuals may risk great amounts of time and energy to create a new work, but they have no way of recouping their investment. Because of this, situation, individuals have no economic incentive to invest time and money to create new works. Therefore progress in science and the useful arts is limited to individuals who are not incentivized by economics alone. Therefore progress may be slow.

If we could get an infinite number of monkeys, an infinite number of typewriters, and were willing to wait an infinite amount of time, we could break the Hostage Scenario stalemate by brute force alone. Then we wouldn't need copyright and patent law. We'd just need an infinite number of bananas and patience. But humans are impatient and very cheap when it comes to bananas, so a faster solution is needed.

One solution to the Hostage Scenario around intellectual works is a bounty system. The community as a whole agrees to treat new works as if they were the exclusive property of the person who created them. This turns the intellectual work into intellectual property for a limited time. The bounty is set by the community to be high enough that individuals have economic incentive to create new works and the Hostage Scenario stalemate is broken.

The bounty system settles on a bounty that is just high enough that someone collects the bounty. It is like a reverse auction where the lowest bidder wins. This encourages competition among the bounty hunters. It also encourages bounty hunters to do the job as efficiently as possible and as quickly as possible. The bounty goes to whoever first succeeds in creating some new work. The bounty hunter invests their time and energy up front and only collects if they succeed. The community does not pay for failures.

The bounty for intellectual works is a number of rights given to the author for a limited time. During that time the creator can use their exclusive monopoly of rights to make back their investment.

For copyright, there are several parts of the system that have set the bounty too high: duration of copyright, software patents, and the anti-circumvention clause of the DMCA.

Duration of copyright should last long enough that the author can make back their money from creating the work in the first place. In 1790, Congress created the first copyright law in America, setting the term to 14 years plus an additional 14 year extension. These term limits gradually went up to 56 years by 1976, which means that for two centuries, copyright terms were long enough that people were willing to create works in exchange for the bounty. In 1976, Congress passed a law causing copyright terms to jump from 56 years to “life plus 50 years”. Enlarging the duration of copyright seems to be directly tied to the expiration of copyright of the 1928 film “Steamboat Willie”, featuring Mickey Mouse. The bounty algorithm requires the community to offer as low a bounty as possible, raising it until someone accepts. But the more recent term extensions indicate that copyright durations are now being set by the dominant bounty hunters rather than the community. Congress is not doing their job of representing the people.

Software patents are part of U.S. law in large part because Bruce Lehman, a former lobbyist for corporate software companies, was appointed to the office of patent commissioner and used his position to change how the patent office viewed the patentability of software. This was all to the direct benefit of his former paymasters. Software patents allow the dominant player to maintain their dominance and squeeze out the competition. Software patents do not require their applicants to discover anything new about the natural world we live in. Software patents discourage the free exchange of ideas that normally occurs when a patent is awarded. And software patents raise the cost for Barn Raising projects, such as Linux, to contribute. That the biggest software barn raising exists in spite of Software Patents indicates that software patents are not needed as an incentive to break the Hostage Scenario. Therefore Software Patents set the bounty too high for software developers.

The DMCA with its anti-circumvention clause exists in large part because Bruce Lehman went on an international lobbying campaign to convince other countries to adopt the kind of copyright laws he wanted through the World Intellectual Property Organization, which then forced congress's hand to either pass the DMCA to stay in compliance with WIPO or withdraw from the treaty. The anti-circumvention clause of the DMCA grants patent like powers to the manufacturer of a device if the device involves encryption of any kind. This allows a manufacturer to force out anyone who might normally compete by selling a similar product for less money. It would be like General Motors putting a lock on the hood of their car and forcing everyone to get their cars serviced at a General Motors dealer and buy parts from no one but them. The anti-circumvention clause has already been used in attempts to monopolize replacement parts as mundane as printer toner cartridges and garage door remote controls. The only argument in favor of the anti-circumvention clause is that it prevents copyright infringement. But the truth is that it doesn't. And it comes with the expense of killing all Fair Use rights that consumers used to have (want a copy of a song for your car and home, buy two copies), granting patent-like powers to manufacturers of the most mundane devices, eliminating competition, stopping independent review of consumer products, and chilling research.

For copyright, several parts of the system have set the bounty too high: duration of copyright, software patents, and the anti-circumvention clause of the DMCA. To correct the situation, several things must happen. First, the duration of copyright must be set to something that reasonably reflects the time and energy an an author invests in a work, i.e. life-plus-90 years doesn't even try to recognize the conservation of energy. 42 years might be a good place to start. Second, software patents must go. Patents must require the inventor to discover something about the physical or natural world, not merely let linguists come up with new ways of expressing things. A patent may involve software, but the thing being patented must the discovery that relates to the physical world. Finally, the anti-circumvention clause must go. It serves no legitimate purpose unless stifling competition is considered legitimate.

Once these steps are taken, copyright law will reflect a bounty that encourages efficiency and speed, and rewards success. It will also bring competition back into the system.

But the Bounty System is only one possible solution to the Hostage Scenario stalemate. The information age, with the widespread availability of computers and network connections, has lowered the cost to contribute to the point where collective action can also break the Hostage Scenario stalemate. Many individuals can come together on a project, contribute their individual pieces, and then these pieces can be combined to form what could only have been attained by a massive corporation or a massive government funded public works job. The division of labor is scaled to the point that each contributer could donate one hour and a million contributers could create a million man-hour result. Computers and the internet have made possible electronic Barn Raising projects that total the same kind of man hours it took to put a man on the moon.

For Free.

As part of Congress's responsibility to set the bounty as low as possible, Congress should recognize this Barn Raising approach as a legitimate and extremely inexpensive way to “promote the progress of science and the useful arts”.

No copyright or patent law should raise the cost to contribute to a Barn Raising project. No matter how much more money it might make Microsoft or Disney, and no matter how much Microsoft and Disney make in political contributions, Congress's duty is to set the bounty as low as possible to get the job done, and Barn Raisings are the lowest bidder.

This doesn't mean that the Bounty Hunter system goes away and is replaced by Barn Raisings.

This means that Congress cannot create a bounty that makes it more expensive for a Barn Raising to exist. Barn Raisings don't need government subsidies the way some corporations do. But incentive systems like software patents reward Bounty Hunters and punish Barn Raisings. A bounty should not reward the highest bidder and punish the lowest bidder.

Congress needs to do its job representing the people by setting the bounties just high enough to get Bounty Hunters to do the work. And Congress must make sure it does not create any Bounty System that wipes out Barn Raising projects that promote the progress of Science and the Useful Arts for free.

Congress might even consider creating some ways to LOWER the cost to contribute to Barn Raising projects, such as liability protection, among other things. But that is a topic for another day.

5 External links

This section contains pointers to external links for readers who wish to read more.

5.1 Bill Gates Interviews

For those interested in the CNET and Gizmodo interviews with Bill Gates, they are linked here:

The CNET interview:

The Gizmodo interview:

5.2 The Statute of Anne

5.3 The Longitude Prize

5.4 Section 8 of the U.S. Constitution

The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

5.5 U.S. Copyright Act of 1976

Copyright terms were changed from 28+28 years to Life-Plus-50 years in preparation for joining the Berne treaty.

5.6 U.S. Copyright Term Extension Act

5.7 The Halloween Documents

5.8 Bruce Lehman's biography

5.9 Wheaton v. Peters (1834)

First Supreme Court ruling on copyright law. Court rejected “common law copyright”, the idea that copyright is a natural right, and also rejects perpetual copyright terms. “Until secured by congress, he (the author) could have no right under the constitution. When secured, it must be to such extent, and upon such terms as congress may enact.”

5.10 Atlantic Works v. Brady (1883)

Patent law must satisfy the constitutional requirement to promote the progress of science and the useful arts. Bad patent law can actually impede progress, rather than promote it.

“The design of the patent laws is to reward those who make some substantial discovery or invention, which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention.”

5.11 Graham v. John Deere (1966)

Patent law must satisfy the constitutional requirement to promote progress of science and the useful arts, and Congress may not ignore those constitutional constraints.

"Congress, in the exercise of the patent power, may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby. Moreover, Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the public domain, or to restrict free access to materials already available. Innovation, advancement, and things which add to the sum of useful knowledge are inherent requisites in a patent system which by constitutional command must "promote the Progress of useful Arts." This is the standard expressed in the Constitution and it may not be ignored. And it is in this light that patent validity requires reference to a standard written into the Constitution."

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