No, I don’t think that Copyright is necessarily the right form of IP protection, and we have definitely lost control of Patents with regards to software. (Only the lawyers and vultures are making money.) Which is why I said that I’m not sure that the necessary IP protection concept has been architected yet.
The problem as I see it ... and it definitely goes way back even to the “clean-room” cloning of the original IBM-PC BIOS ... is that the first designer and developer of anything that is functional, be it a roadway or a piece of software, incurs a lot of costs and takes a lot of risks that “all those who come thereafter” do not have to experience. You simply build another railroad fifty-five feet to the left. The original company conceived of the idea, turned it into a practical implementation, cleared the jungle and sold the idea. All you did was to exactly copy it. What you copied, and for that matter your motivation for copying it and the entire source of your profit opportunity for having done so, was none of your doing. That’s not fair.
On the other hand, we do not want to squelch “the idea of a road,” nor do we want to squelch the building of better ones. Which is more-or-less what Patents try to do. Which is why IMHO software patents are categorically worthless: they are expensive and don’t accomplish their mission.
Awkwardly pursuing the road-building analogy: as an incentive for a company to build a superhighway, I could authorize them to collect tolls for the next five years. I could stipulate that no roadway can be built within one thousand yards of that same route for the same interval, or stipulate that, should one be constructed, they could collect commensurate tolls on it also for the same period of time. But we simply don’t have any such notions in IP law right now, AFAIK.
INAL ... thank god ... but basically I think that what ought to be protected for a little while is the business advantage that comes from “having done all that up-front design and build work.” You would be afforded a finite window of opportunity during which you would be entitled to royalties. I’d think of this notion as “pragmatic, reasonable, and fair.” (Until the designing attorneys chopped it to pieces...)
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