A thought exercise:
Someone jacks your car. After tooling around for a bit – the police catch up with him.
The cops inform him the government will charge him with Grand Theft Auto.
The cops then…release him on his own recognizance. AND let him drive away…in your car.
You show up at police headquarters – waving your car title around, demanding your property back.
You are informed you will get your car back – just as soon as the thief’s court case and all subsequent appeals are exhausted.
Until then – the suspect is free to continue driving your car.
This would be titanically stupid.
And this is how we currently treat Intellectual Property (IP) and its theft.
The thieves steal your property – and can continue to use your property.
Throughout your years and years of using the courts – trying to get them to stop using your property.
This is REALLY awful policy.
A quintessential, quintessentially awful example of this? Google v Oracle America.
“(I)n 2007 Google – the greatest thief this side of Communist China – used Oracle’s open source Java to build its Android operating system.
“And then locked down its Android operating system – and didn’t share it back with the Java open source community….
“What does Oracle require of Java users?
“You either make free and open – i.e. public – what you developed atop the Java base.
“You get a license from Oracle to use their Java….
“Google – shocker – did none of the above. They took Oracle’s Java, remade it in their image – and then began playing hide and seek with the courts….
“(T)his is no minor theft. What began thirteen years ago with Google stealing Oracle’s Java – became….
“Android Is the Operating System Most Used Around the World
“In September 2019, 51.4% of US mobile devices ran on Android….
“(A) near-decade-and-a-half of Google’s illicit use of Oracle’s property – has led to Google making…probably…hundreds of billions of (a trillion-plus?) dollars.
“There’s the direct sale of Android devices. But that ain’t nothing.
“Then add in the inconceivable amounts of data Google has collected from its hundreds of millions of (a billion-plus?) Android users.
“Access to which Google has spent the last thirteen years – selling the daylight out of to advertisers.
“The latter – is orders of magnitude more money than the direct sale of Android devices.
Data and its sale – is the Google business model. It’s almost solely how they became a nearly $1 trillion company.”
That’s a LOT of Google driving Oracle’s car – after having stolen it. (And thirteen years later – the case is STILL not settled. It is now before the Supreme Court.)
Want another example?
“(F)or years and years – through generation after generation of iPhone – Apple has signed all sorts of contracts with Qualcomm. Promising under penalty of law to pay Qualcomm for the use of Qualcomm’s patented ideas.
“Except since April of 2017 – Apple hasn’t paid Qualcomm a penny….
“Apple has sold – by now – way over 200 million $1,000-per iPhone Xs. And hasn’t paid Qualcomm for any of them.
“Oh – And how much is Apple contractually obligated to pay Qualcomm per $1,000 iPhone X? Less than $20….
“Apple still had and has – signed contracts with Qualcomm. In which Apple was and is obligated to pay Qualcomm for the use of Qualcomm’s patents. Apple just isn’t paying.
“Apple filed lawsuits to get out of the contracts they themselves signed. And bizarrely decided they would stop paying Qualcomm – until the court cases were decided.
“Ummm…that’s not how it works. The contracts are valid – unless and until they are invalidated. Which means Apple is on the hook to Qualcomm – unless and until they’re not.
“That mess was finally settled in April 2019.”
But I hear the defenders of theft say: “That didn’t prevent Oracle and Qualcomm from also continuing to use their IP.”
Well yes, it did. Certainly in the ways Oracle and Qualcomm wanted to use it.
Qualcomm spent many years and untold billions of dollars developing the IP – which Apple then stole.
Qualcomm’s very existence as a business – and their continued development of new IP – is completely dependent upon getting paid for the IP they’ve already developed.
Oracle paid a lot of coin to purchase Java. (They actually purchased Java creator Sun Microsystems for $7.4 billion – largely to acquire Java.)
Oracle too should be able to make that money back – on their terms.
Giant IP heists like those committed by trillion-dollar-companies Apple and Google – make it seem much less of a thing for other companies to steal what Apple and Google have stolen.
Ownership is supposed to have its privileges. Like determining who gets to use what you own – and under what conditions they can use it.
One of those privileges should be: Being able to stop the car thief from driving your car – the moment you’ve filed auto theft charges.
Apple and Google should have had to stop selling their relevant products – the second Qualcomm and Oracle showed up with their car titles (their IP documents) and demanded action from the courts.
In legalese – it’s known as an injunction:
“A court order by which an individual is required to perform, or is restrained from performing, a particular act.”
You know how pathetic it is that US IP owners can’t get injunctions?
You know, Communist China – the world’s hugest IP thief.
Communist China gives IP owners injunctions at the outset of their IP cases:
“Since a preliminary injunction can stop acts infringing upon IP rights quickly before the final judgment for an action is made, or even before the action is filed, it is increasingly used by IP rights owners and granted by courts in a trend that further strengthens the protection of IP rights in China.”
It prevents the car thief – from continuing to drive the car.
And dissuades other car thieves. Because they know they won’t be able to continue driving the cars they steal.
Because common sense. And human nature.
Even Communist China has figured this out.
Why haven’t we?