Archive for the ‘Intellectual Property’ Category
In Critique of Patel’s “The Patent System Isn’t Broken – We Are”
Nilay Patel, of Engadget fame, recently wrote a piece discussing why the patent system in the United States isn’t broken, and touched on all the high points: software patents, patent trolls, and the recent This American Life episode that has been so widely discussed.
I should start by saying that many of his points are sound. He clearly has a good grasp on lots of the patent issues that have concerned me. Even as he starts by by blasting the “conventional wisdom” that “the patent system is broken beyond repair, a relic of a previous time that has been obsoleted by the rapid pace of technical innovation”, he never actually argues that any of the problems that plague the system are either OK, or are not present. A major flaw, then, is that his argument is a straw man argument; he asserts that conventional wisdom is saying the system is completely broken beyond repair. He goes on to assert that the patent system is really just beset by a lot of really bad flaws both in conception and in practice than can probably be overcome by making significant modifications and amendments to the law. I’m not sure I’ve heard a single considered argument anywhere that would disagree with this. In my limited experience, few people are calling for the wholesale dissolution of the entire U.S. patent system.
Moving past a critique on the structure of his argument. he starts with a remedial course in patents, quickly moving past the notion that patents are “just a simple incentive for people to develop new inventions” and describing the fact the patents are an exchange in which inventors make their information public in exchange for time-limited, government-granted monopoly rights on the inventions. I think the subtlety of his point here is that patents encourage the release of novel, innovative patent ideas that wouldn’t otherwise be made public by giving their creators a monopoly on them. The problem is that there is no incentive to keep the ideas secret in the first place. As Richard Stallman said:
Now the patent system is supposed to encourage disclosure of ideas. In fact, in the old days, nobody kept the ideas secret. They kept the code secret, it’s true. The code, after all, represented the bulk of the work. They would keep the code secret and publish the ideas so that way the employees would get some credit and feel good. After software patents, they still kept the code secret and they patented the ideas, so in fact, disclosure has not been encouraged in any meaningful sense. The same things are kept secret now as what were kept secret before, but the ideas which used to be published so that we could use them are now likely to be patented and off-limits for 20 years.
If you look back at the bulk of the major innovations in the software space, this is quite true. I’ve read a lot about it, but Richard Stallman lived through it. His point here is excellent and is not addressed by Patel, but this particular aspect isn’t my primary concern with Patel’s treatment. What concerns me is that he mentions, but never returns to, the notion that patents are first and foremost an “incentive for people to develop new inventions”, to use his words.
In my opinion, it is to this fundamental assumption that we must return when discussing software patents: would software innovation be significantly affected if inventors could not patent their software? He does not explore this topic, and certainly does not point out that unlike almost all other patentable inventions, software is already covered by copyright which already grants software authors government-sponsored monopoly protection for their work for so long that I, and most likely anyone reading this, will be dead when software written today comes out from under that aegis. That fact alone makes software worthy of a second look when it comes to patents, yet Patel points out that
What we keep calling “software patents” are just regular old patents; there is no special section of Title 35 that specifically delineates between hardware and software, or software and machinery, or software and anything else you might dream up.
This indicates that the laws we’re following make no special provision for being able to patent software, yet it is widely acknowledged that software is a significantly different type of endeavor than conventional invention. That realization alone justifies some worry about the status quo.
Patel actually invokes a 2006 essay by Paul Graham to make the point that software patents are just patents. He neglects to mention that Paul Graham advises startups to not “waste your time worrying about patent infringement. You’re probably violating a patent every time you tie your shoelaces”, which Graham writes off as being part a ritualistic battle that all companies must engage in do business here. I can’t immediately think of a more damning statement that indicates the state of software patents is broken. Unfortunately, Graham’s piece was written in 2006 when patent trolls were much newer than they are now, though he had this to say about them:
But because patent trolls don’t make anything, there’s nothing they can be sued for. I predict this loophole will get closed fairly quickly, at least by legal standards. It’s clearly an abuse of the system, and the victims are powerful. But evil as patent trolls are, I don’t think they hamper innovation much. They don’t sue till a startup has made money, and by that point the innovation that generated it has already happened. I can’t think of a startup that avoided working on some problem because of patent trolls.
In the software business I know from experience whether patents encourage or discourage innovation, and the answer is the type that people who like to argue about public policy least like to hear: they don’t affect innovation much, one way or the other.
I don’t think I agree, but even if that’s true, why do we even have them? It can’t possibly be cheaper to deal with all the legal wrangling associated with software patents than not. If what he says is true, at the very least software patents are a drain of time, energy and money from the innovation machine we have worked to build.
Is LodSys fostering innovation? Is Intellectual Ventures? If a lone developer in his bedroom develops a mobile application that is significantly infringing on dozens of patents, what does that say about the “non-obvious” clause in practice? This is not a purely academic question: patent trolls are real, and unlike in 2006, they are going after start ups and lone developers.Can you take a step back and honestly say that such a situation is driving innovation?
Patel doesn’t argue with any of this, thankfully. He acknowledges all of these problems, and suggests several “patches” to current law that might help the situation. But, he never really returns to defend its existence in the first place by explaining how it is fostering innovation in the software industry. And for someone so focused on “actually look[ing] at how the patent system works, where it’s specifically malfunctioning, and how we can fix it”, he doesn’t really justify why software, something that is perilously close to (unpatentable) math, should be patentable.
There are thousands of software patent horror stories that keep cropping up, but one of the most atrocious is about John Carmack. Carmack actually developed a software technique known widely as “Carmack’s Reverse”, which Creative (those guys that make sound cards for computers) later patented and then used against him just prior to the release of one of his games (Doom 3) to strong-arm him into promoting their products. The fact that there was prior art was no remedy for him: the game wouldn’t be released because of ongoing litigation and cost Carmack millions, even though he would win in the end. Creative knew he would do whatever he could to avoid that, and he did.
This type of situation is difficult to prevent and is inherent in the costs of having a patent system in the first place. Knowing that, we have to be able to demonstrate that the patent system (for at least software patents) deserves to live; it has to demonstrate that overall it a net win. No one is doing that, and there is in fact substantial evidence from all corners that it is a significant net cost to the system as a whole.
I have only a few heroes in the programming world. I would like to give them some space to voice their opinions on software patents. As you read, remember, these are the people that were the innovators that actually changed with world with the innovations in computer science and software – they are the people on whose backs the very technology you are using to read this was built.
The idea that I can be presented with a problem, set out to logically solve it with the tools at hand, and wind up with a program that could not be legally used because someone else followed the same logical steps some years ago and filed for a patent on it is horrifying.
I am told that the courts are trying to make a distinction between mathematical algorithms and nonmathematical algorithms. To a computer scientist, this makes no sense, because every algorithm is as mathematical as anything could be. An algorithm is an abstract concept unrelated to physical laws of the universe.Nor is it possible to distinguish between “numerical” and “nonnumerical” algorithms, as if numbers were somehow different from other kinds of precise information. All data are numbers, and all numbers are data. Mathematicians work much more with symbolic entities than with numbers.
Therefore the idea of passing laws that say some kinds of algorithms belong to mathematics and some do not strikes me as absurd as the 19th century attempts of the Indiana legislature to pass a law that the ratio of a circle’s circumference to its diameter is exactly 3, not approximately 3.1416. It’s like the medieval church ruling that the sun revolves about the earth. Man-made laws can be significantly helpful but not when they contradict fundamental truths.
The government desperately needs to be better educated so that it can start to undo the deleterious effects of software patents (by reversing the error of interpretation by the courts that allowed them in the first place).
US experience shows that, unlike traditional patents, software patents do not encourage innovation and R&D, quite the contrary. In particular they hurt small and medium-sized enterprises and generally newcomers in the market. They will just weaken the market and increase spending on patents and litigation, at the expense of technological innovation and research.
Though not quite a programmer, I’ve always admired Phil Salin, who perhaps wrote the most compelling critiqueof software patents back in 1991, long before it was part of the public consciousness. His argument spoke to me because when I first read it ten years ago, I was as motivated to refine my abilities and develop proficiency within my chosen art as I am today. I find my work as a programmer rewarding precisely because it is a fundamentally creative art form, and Phil’s argument strikes at the heart of why endeavors like my own should be preserved. In that sense, his critique of software patents was highly personal for me. 20 years later, we are no closer to addressing these issues than the day he wrote this. I will defer to him for my closing:
Any assertion that some one individual or organization can ever rightfully establish exclusive ownership of the use or refinement of abstract ideas – obvious or non-obvious, important or unimportant – embodied in a work of prose, music, mathematics, or software, should trouble the conscience of everyone whose creative work is built, as it necessarily must be, in part or in whole, out of ideas and techniques discovered and developed by others.
VLC Removal From Apple’s App Store
Larry Lessig on Remixing (2007)
The Copyright Paradox
I was reading a really interesting blog post on copyrights, and this amazing paradox about copyright struck me.
Right now, the internet is changing the way text, music and video are distributed. Part of that change is the ease with which data can be copied. If you look at what the U.S. supreme court said about copyright, they quite literally made an allowance for data to be copied from the hard disk of a computer to the RAM of the computer, mainly because it was necessary for the use of the data. I mean, this is the level at which we are trying to enforce copyright law. If they could find a way to charge extra for you to copy that MP3 file from disk to memory so you could play it, I’m pretty sure they would.
But when I talk about “they”, I’m really talking about some enormous corporation. Copyright infringement is pretty much a civil issue in most cases, and therefore enforcement is left to the copyright holder. And that’s the paradox. We all like to imagine that the struggling solo artist making music in his or her garage is getting screwed because their songs are posted on Kazaa (or whatever), and that by keeping really strong copyright laws we’re somehow helping those kinds of artists. Here’s my revelation: copyright law only helps those that have the (quite considerable) resources to enforce it themselves! So, no matter how strong we make copyright, it doesn’t really help the poor artists — the solo writers, musicians, or filmmakers. Because they’re busy doing what they do best: creating art. If people want to copy their stuff, they will, becuase the internet allows it. Those that love it will buy, those that don’t will pirate it. Copyright is pretty much completely out of the picture, because enforcement is nowhere in sight.
So who does copyright benefit? Well, the huge companies that exist soley to aggregate copyrights. The music labels and maybe the game development houses. Only the entities that have huge sums of money to track down and sue infringers will be able to leverage copyright laws in an attempt to curb piracy. And therein lies the irony: those companies got all that money by skimming off the work of the artists they represent, so the money was lost to those artists anyway.
My conclusion? Copyright really only helps large corporations that exist solely to aggregate copyrights. The artists that it is supposed to reward end up doing best by embracing the sharing the internet affords us, rather than trying to fight it.
Software as an Investment in an Ecosystem
Here’s the thing about using commercial (proprietary) software: you are not buying software, or even software-as-a-service. You’re buying into an ecosystem. Let me quickly provide examples, rather than pontificating endlessly.
Take the iPhone. I really like the iPhone. A good friend of mine just bought a shiny new iPhone 3G S. She was moving from Verizon, and had used their oh-so-handy Backup Assistant to backup her addresses, phone numbers, emails, etc. The problem was that Verizon doesn’t really have a way to get the data out of their system. So, it’s great so long as you stick with Verizon, but as soon as she wanted to switch to AT&T and grab her contacts, she had a problem. (For the curious, I actually extracted the data from her phone, a Motorola, with BitPim, exported from BitPim to vCards, and imported from vCards to Apple’s Address Book, at which point I recommended taking the same vCards file and importing it into Google Contacts as a nice central storage point that does allow you to export.)
The point here is that she invested the time to input roughly 250 contacts into a proprietary system but didn’t have 1) an exit strategy or 2) a plan to keep the system forever. This is common – when you invest a ton of time in a piece of technology (either by inputting data to it, or learning it) you need to have a plan for what happens to your data (or your skill) if that tool goes away for some reason. Google Contacts was a good replacement: it is accessible via the web and exports to three different (plain-text) formats that are widely used and can be backed up locally.
Second example: investment of time in learning a proprietary piece of software. Another good friend of mine is very interested in photography and image editing. So, he, being motivated, took a class to learn Photoshop and even got the educational discount on Photoshop when he took the class. The $500 or so isn’t that big of deal, but coupled with the hundreds of hours learning the tool, starts to become a major investment of the only two things we have in life: time and money.
Here’s the problem: the one thing you can be sure of is that you will get a new computer. People like me upgrade more often than most (every 18-24 months in my case, and I’m not even a gamer), and probably own more regularly-used computers than most (desktop, laptop and netbook). So the problem becomes apparent: If I invest a few hundred dollars and hundreds or thousands of hours in learning Photoshop (or Excel, or whatever), I have to worry about having that tool wherever I am (on my desktop at home, on my laptop at work, on my netbook at the airport) and whenever I am (today, a year from today, 10 years from today). And that is when the cost mounts: you are willing to spend lots of time to learn how to use the tool, but that investment represents a hook. Now, you have an enormous incentive to continue spending money to buy new versions of the software for all your machines that span the space and time you occupy.
So, when my good friend bought a new computer, he had the problem of getting a new copy of Photoshop for it, because he was now heavily invested in the ecosystem surrounding the tool. He knew how to use the tool, but he also relied on the vast pool of resources on the web related to Photoshop: tutorials, plugins, templates and interoperability. So, the investment isn’t just his time, his money, and his skill, but also an expectation that certain associated resources surrounding the product will be there for you, as a user. This is the product’s ecosystem.
I’m not saying you shouldn’t invest in proprietary software systems; I’m saying you should do so with your eyes open to the true costs of the investment – don’t just look at the ecosystem that the iPhone has and think “Everyone has one…and it has 100,000 apps, it’s the way to go!” Recognize that your are now necessarily going to be compelled to use all the associated iPhone tools, and you will invest yourself in learning how to use them. Many commercial software vendors recognize this effect: there is a good reason that Microsoft gives away most of their products freely to students. These companies realize that your willingness to spend the time to learn new tools will trump your desire to hang on to your hard-earned dollars. That is the strategy to keep the money flowing.
So, what can you do when you see this happening to you? You can change your expectations. You can treat the commercial software as a single point in a space of solutions to your needs, and keep an open mind about switching. Learn the tool from the perspective of approaches it offers to solving problems, and try out other (perhaps Free) tools with which the same approach can be applied. In the case of Verizon, you could look at Google Contacts, Plaxo, Thunderbird, or Apple’s Address book. In the case of Photoshop, you can, depending on your needs, look at The Gimp, Picasa, Paint.NET, iPhoto, Paint Shop Pro, or Aperture. But, when you pick a solution, recognize that your computer and your needs will change, and be prepared for it.
Stop holding our kids back
It can be really difficult to tell the difference between a skillful troll and someone who really is that clueless. For that matter, it can be really difficult to tell the difference between parody and reality, especially when one predicts the other.
That said, I honestly have a really hard time figuring out whether the HeliOS Project has been the victim of a troll or not when I read this. This is very similar to Poe’s Law, which I myself have fallen victim to on occasion, though instead of being unable to distinguish parodies of fundamentalism and real fundamentalists, I cannot tell whether or not there are people who really think this stuff. Anyway, I wish the best to HeliOS, it looks like they have their work cut out for themselves.
Asus Giving Microsoft Preferential Treatment with EEE 901 Release?
I’ve been wanting to pick up one of Asus’ EEE PC computers since I first saw one in the middle of 2007, but the features had not really hit the sweet spot for me until they announced the EEE 901 model back in May. Originally, one of the big draws to use EEE for me was that it sported Linux by default, probably mostly because the original models (the 2G Surf in particular) couldn’t run Windows XP all that well.
Fast forward to the more recent models (900, 901): these can run XP just fine. So, it would make sense for Asus to work with Microsoft to provide a version with XP. They accomplished this, but in a sort of underhanded way:
- It seems that they go pretty far out of their way to make it seem that the versions carrying XP cost exactly the same as the versions carrying Linux. In the case of both the 900 and the 901, pricing for each version was the same regardless of which OS you chose ($549 for the 900, $599 for the 901). Saavy customers will notice however that the Windows version comes with 40% less drive space (12GB vs. 20GB) than the Linux version.
- The other case that I noticed just today (8 July, aka “release day” in the US) is that, at least in the US, it seems that Asus is releasing the XP version first, and delaying the Linux version “a couple of days”. This isn’t easily visible – any retailer that takes preorders isn’t providing expected shipping dates that I could find. Amazon simply says they will notify me when the product is in stock, with no estimate. Newegg doesn’t even list the Linux models as existing. When I called Portable One to ask them if the EEE 901 was in stock, they said “XP in today, Linux in a couple of days”, which is how I figured out what was going on.
Granted, if it is only “a couple of days”, then it won’t be a big deal for most people. In my case, it makes the difference between having it for a business trip I was planning, but it is obviously not the end of the world. On the other hand, why wouldn’t they be able to do a simultaneous release of both versions unless they were trying to favor one over the other? The model available at release will clearly be favored in the market.
My Letter to Barack Obama on Intellectual Property in the United States
Senator Obama,
As a Software Engineer, I am very impressed by your stance on technological issues. You position is well thought out and reasonable. I wish to highlight the importance of a couple of areas that you don’t specifically mention in your position discussion, but I am sure you are aware of. These two areas of intellectual property are both going through a radical transformation and are vital to maintaining the United States as a leader in research and intellectual property: patent law and copyright law.
I believe that the insistence of the United States on recognizing software patents is harmful to our economy and to the best interests of citizens, researchers and content creators alike. There are many arguments to be made against software patents. The late Phil Salin made an excellent argument based on free speech in 1991 in his insightful analysis “Freedom of Speech in Software”. Ben Klemens centers his argument against software patents around the existing prohibition of patents on mathematical formula in his book “Math You Can’t Use”.
Many arguments exist, but at the end of the day, even businesses that make their money writing software don’t believe software patents encourage innovation. Timothy B. Lee of Ars Technica has a brilliant analysis of Brad Smith’s (Microsoft’s General Counsel) March 2007 defense of software patents in light of statements made by Bill Gates in 1991 on the subject of patents:
“I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique … The solution to this is patent exchanges with large companies and patenting as much as we can.”
Bill Gates’ worry came to pass, as an arms race developed among the software superpowers. These patents were not amassed to attack others, but to ensure a software house’s ability to continue writing software even in the face of patents that would stifle innovation and block progress. Microsoft was ahead of the curve (along with IBM) now sporting over 6000 software patents, which is why a system that at one time seemed a threat is now reluctantly embraced, as we see in Brad Smith’s March 2007 article for CNET. As Mr. Smith asserts:
“Protection for software patents and other intellectual property is essential to maintaining the incentives that encourage and underwrite technological breakthroughs.”
As Mr. Lee points out in his criticism, this assertion is patently false: Microsoft created both DOS and the first version of Windows not only by building on previous work, but without any software patents whatsoever (Microsoft’s first software patent was granted in 1988, and Microsoft held only three software patents by 1990, long after their lucrative Windows and Office brands had been developed). Even worse, one could make a credible argument that the vast majority of true innovation in software was accomplished before software patents were in widespread use. Douglas Englebart’s work at ARC developing bitmap screens and hypertext is the basis for the web hypertext that this letter is using. Xerox PARC did stunning work in the 1970s that remains the predominant paradigm today, including Object Oriented programming, graphical user interfaces, the laser printer, ethernet (the basis for the internet), and the graphical text editor that formed the basis for word processors. Indeed, if an argument were to be made on the basis of objective evidence, it would seem that as software patents have increased in prevalence, so has innovation in software decreased.
This patent “arms race” essentially shuts out bedroom and open source programmers who are not simply hobbyists, but actually provide the foundation for innovation across the industry (Apple’s OS X is based on free software, for example). In my short discussion on software patents, I discuss this problem in detail, concluding that “in short, the patent system has been perverted to punish the generous and to benefit the mercenaries” as we see when companies like Microsoft threaten to use patent law against the developers of Free software. Perhaps the answer is not to remove software patents, but perhaps evaluate half-measures that would provide protection for those that give their work back to society as a basis for other work and free of charge.
The other issue I wanted to talk to you about is the area you discuss in the section of your position titled “Protect Intellectual Property at Home”. Copyright is going through a transformative period; the production and management of information is central to more industries today than it was 20 years ago, but we are also developing the means to move information quickly and cheaply – and more people get this ability each day through broadband connections to the internet. We need to develop sensible laws to allow these changes in industry and in information exchange to coexist.
There are industries which have centered their business model around controlling the distribution of data – a service that was quite valuable 30, 20 and even 10 years ago. The service was so important that those industries have amassed enormous amounts of money over decades, which they use to influence lawmaking, often at the expense of the citizens the laws are supposed to serve. The most well known of these laws is the DMCA, which is filled with unintended side effects that criminalize perfectly reasonable behavior. One example of a crime created by the DMCA is copying a DVD to a laptop to watch on an airplane. This is understandably confusing, given that the exact same action with music CDs is not only legal, but has fueled a multi-billion dollar industry of portable digital music players and subsequently the development of online digital music stores like iTunes and AmazonMP3.
I believe that information has value and that value should be protected. Even more so, I believe that we should not capitulate to the whims of an industry whose business model has been largely superseded when making our laws. If an industry’s business model is centered around the strict control of information in an environment where people freely exchange information, no law will enable that business model to succeed. It may turn millions of honest citizens into criminals, but that is not constructive. It is vital that we find solutions to the incongruence between the industry’s business model and technological progress that don’t criminalize reasonable behavior and trap the consumer in the middle of the fight.
The court cases and laws that will determine our future with respect to intellectual property will be occurring on your watch. In fact, some have already occurred. Two well known examples are the Grokster case that the Supreme Court looked at which examined the legality of peer-to-peer software, and the DMCA (signed in 1996 while Bill Clinton was in office) that criminalized actions that would have been acceptable under previous copyright law. More are coming. The main concern here is that we tread carefully; the issue of intellectual property protections afforded by the government is rocky terrain filled with unintended consequences and special interests.
There is obviously much to write on these topics, but I will stop here and leave you with one closing thought. As I was growing up, a wise man offered me a piece of philosophy on life: “Imagine the man you would like to be 20 years from now, and each day, undertake efforts to become that man.” It is not so different for us as a nation. Rather than passing laws to fix perceived ills, we should imagine what future we want for ourselves 10, 20 or even 50 years from now. When we make laws, we should consider them in light of what kind of country we would like the United States to be. I think if we follow this ideal when thinking about intellectual property in the age of the internet, we will make decisions our children will be proud of.
Sincerely,
Rick Dillon
San Diego, CA
Eating and Investing
Eat, not too much, mostly plants.
This really captured a lot for me, and I found a similar version for investing today from New York Times personal finance columnist Ron Lieber, this time in seven words:
Index (mostly). Save a ton. Reallocate infrequently.
Short and simple enough to remember, even for me.
C-SPAN and Fair Use
I got into a conversation recently about the events surrounding the liberalization of C-SPAN’s policy regarding the use of their videos on the internet. This initially became an issue in early 2007 when speaker Nancy Pelosi purportedly violated copyright law by posting a video of a committee hearing (not congressional footage, which would be in the public domain) to her blog, The Gavel.
During the conversation, the point was made that C-SPAN does not take any funding from the government, a notion even Wikipedia says is “contrary to popular perception”. Of course, the point is correct: C-SPAN does enjoy the right to film Congress, but is indeed a non-profit organization. Nevertheless, they have a history of guarding their copyright on the videos they produce of events in Congress. In December 2006, Brian Lamb wrote a letter, available in PDF from C-SPAN, requesting a number of limitations be lifted on the footage gathered during House sessions, and also promising to “to make our floor coverage fully available to accredited news media following established pool practices”, read: the coverage will not be made available to the public for reuse without restriction. Pelosi later denied the request.
In a widely reported switch, C-SPAN was lauded for their press release of 07 March 2007 stating a change in their policies. Most coverage of the event makes note of the temporally proximate controversy surrounding the use of C-SPAN video on the speaker’s blog, but few, if any, note Carl Malamud‘s letter to Brian Lamb on 27 February 2007, a mere eight days prior to C-SPAN’s announcement. In it, Mr. Malamud makes a compelling argument that while C-SPAN does not take funding from the taxpayer’s directly, “C-SPAN is the primary beneficiary of considerable public largess.” And his point is well taken, and may have directly caused C-SPAN to change their licensing terms. As Lawrence Lessig points out, this all relates to the fundamental question of how we handle copyright on the internet, particularly when it relates to political speech. To leverage outdated copyright laws to stifle political commentary may be a new low. After all, C-SPAN has no way to financially leverage people wanting to see Colbert roast Bush.
This may be more than a year late, but as I had the conversation, I struggled to recall the important events that surrounded the issue, and I thought it would be good to capture them here. In particular, I wanted to document the failure of the mainstream media to capture Mr. Malamud’s role in the license change at C-SPAN.
