Monday, September 12, 2005

Plot Patents Take 2

Andrew Knight posted an interesting comment over on my original post about plot patents. I started to reply in a comment but it got meaty enough to be it's own post...

Here's what Mr. Knight said:
First, it would take no "revamping" of the patent system to allow patenting of fictional storylines. Under binding case law, storylines are probably already patentable.

Second, take a look at for an explanation -- including the moral justification -- for storyline patents.
OK. So copyright doesn't protect a storyline, but rather the full expression of a storyline (i.e. a complete work pusblished or not). Fine. I also wouldn't be surprised if you could successfully defend plot patents before a court; not because I believe in the case but because it seems that the trend is toward broader applicability of patent law not narrower.

However, the nut of your defense is this statement:
"the present pursuit is guided by the realization that, fundamentally, the making of a movie (or writing of a novel or filming of a television show, etc.) involving a new, nonobvious storyline requires the performance of certain definite steps. The combination of the fewest steps necessary to produce a movie or novel or show having the new storyline is a method that should be and, consistent with existing law, probably is patentable."
Which (remember IANAL) is argued as a result of the collapse of the "Printed Matter Doctrine" and the emergence of business method and software patents. i.e. A novel, non-obvious software patent isn't ostensibly different from a plot-line because a plot-line can be expressed as a series of steps.

If that's your argument though, then what isn't patentable; so long as it passes the novelty, non-obviousness, utility, and definiteness tests? Clearly any action has "steps". I'd contend that your argument would allow room to patent "The Move" from Seinfeld. It's novel, non-obvious, useful, definite and is expressed in a serious of steps.

Leaving the "whether" question, let's enage the "why question". Why should plot patents be allowed? Your argument is basically:
  1. "a patented invention protects each and every possible embodiment of a broad invention" whereas copyright will only protect "one of uncountably many possible expressions of those new and unique (broad) concepts"
  2. Most plot "inventors" aren't talented enough to turn a plot into a "possible embodiment"
  3. Plot "inventors" are left with two choices..."to sacrificially innovate for the unearned benefit of thieves, or to not innovate"
  4. This is bad because "Hollywood is failing" and "[t]here is a substantial need for original, intellectually exciting plots in all forms of entertainment, such as novels and, particularly, motion pictures"
  5. Therefore we should protect plot-lines
First you tell us why we have patents at all:
Traditionally, patent protection has provided the economic and moral impetus for technological improvements in all fields. An inventor is motivated to absorb the substantial financial, time, and personal costs of identifying problems with current technologies and inventing solutions to those problems when he is assured the right to exploit that invention by excluding others from making, using, selling, offering to sell, and importing his invention.
So the question arises, what is the "technological improvement" of a plot? Or, what is the "financial, time, and personal cost" of coming up with a plot? It may have taken you years to come up with a certain plot, but hypothetically I could come up with the same plot in a couple of minutes. The minimum amount of time to duplicate your thinking is very short. On the contrary the minimum amount of time to duplicate the thinking for a car engine or a new pharmaceutical is vast. If for no other reason than it takes time for clinical trials and prototypes etc. so that you can demonstrate that it's possible (definiteness right?). If there is substantial "financial, time, and personal costs" to come up with a plot it's because the "inventor" is inefficient. Protecting the inventor of the car or drug is right. Protecting the "inventor" of the plot is not. IMHO.

Finally some observations...
  1. You'd be hard pressed to prove that plots are "hackneyed" because great plot "inventors" are opressed by the current lack of IP protection. Hollywood plot sucks because the average American wants nothing to do with "original, intellectually exciting plots." They want explosions, and skin.
  2. Your view of Hollywood is inconsistent. Hollywood is both "failing" and yet "a skilled, experienced Hollywood writer could ... embody the unique plot in a far superior story" I suppose you would argue that Hollywood is good at "expressing old, stale concepts in new, creative, exciting ways" but they're bad at creating "new concepts"
  3. You may make noble arguments about plot "inventors" but your Postscript speaks volumes. You're in it for the money.
I don't think this is gonna work, but I'm gonna have a fun time watching you try. ;)

1 comment:

  1. This will limit not only literature and films but also computer games and music since both need storylines to make sense.