I recently read an article on Groklaw about the state of america and how america IP laws are stifling innovation. Being an individual, and a part of a law firm that represents technology in its various iterations, I figured I might respond to this.
To start, let's say that IP laws in the U.S. are not perfect, nor is the IP system. Particularly, I think most people would and do argue that the patent system is deeply flawed, followed by certain provisions of the copyright law, and in particular a few provisionsn of the DMCA. What I find most troubling about the statements on Groklaw, and as I can tell, the tech population in general, is the broad sweeping generalizations.
Let's start with the DMCA. Now, the DMCA mechanically has its problems, in particular its lack of specificity, its clear indications that it was not drafted by a technologically oriented individual, but rather traditional legal practices, and its approach to DRM and other protection measures of digital content. I think we far to often forget some very positive aspects of the DMCA, in particular, it provided for the proliferation of blogs, online communities, services like Twitter and YouTube. Now that being said, DMCA has been known to stifle a little (poltical) speech (YouTube takedowns of McCain's Political Advertising.....some of us might argue a little less political speech is just what the doctor ordered.), but as people and companies become a little more DMCA savvy, they realize, DMCA compliance isn't mandatory if there is no infringement.
Alas, let's talk about DRM, which is the real issue in the DMCA. DRM is a very thorny issue, not because of the law per se, but because of implementation, or the poor excuses of implementation. But the issue isn't DRM, is DRM the prohibitor in innovation? I think not. The whole DRM/P2P argument isn't about new and innovative services, it is about people protesting about the amount of money people charge for music. Fortunately, the digital age has made some progress in that world, and with some strong arming from Apple, etc., music has come down to a much more realistic price range. I doubt movies will ever have the same fate, but we'll see. DRM in software has been a problem the world over, in particular look at Microsoft's licensing issues. Look at the dispraportionate amount of effort put in to Microsoft's licensing vs. Apple's licensing, and you might see a disparity. While Apple's legal terms are extremely strong in Apple's favor, they don't put nearly the amount of effort in to managing their licensing of software as Microsoft does. The problem is that for years people broke the law, in an effort to investigate and bring about change. It just so happens that breaking the law now a days is much more "detectable". Things that were once done in secret are now posted on Facebook. The tough part is, the law now only protects those with resources. Those without resources are left with little or no recourse, and that is the major problem with the DMCA, which is the problem with the legal system in the U.S. Those without resources have no protection. And let us not confuse what I mean by no resources. A legal fight will cost you at a minimum $10k, and more likely $250k. So, anyone without that amount in the bank is someone without resources.
In regards to the patent system, I think most people would argue it works very well in the hardware industry. It is the software industry that has had the most problems, and I think most would agree, the patent system does not deal, nor was it designed to deal, with the software industry.
The question is, do these things stifle innovation? I would answer no, it isn't the law that stifles innovation, but our legal process. If loser paid all legal fees, you would have a lot less mertiless lawssuits brought in courts, and people without resources would have resources to protect their interests in the law. A person physically injured never has a problem finding legal representation. As a matter of fact, most insurance companies would probably argue that they find too much legal represenation. But someone who, at least in the north east, makes a decent wage, isn't protected by the law, but doesn't make enough money to protect themselves.
So, to sum up, it isn't the law, its the legal system.