Etherplex

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:

1. 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.
2. 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.

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.

It occurred to me that the patent system was created to encourage innovators to release the results of their work to the public so that the society could benefit as a whole from the work of the individual. The obvious way to achieve this is to give the innovator exclusive rights to the innovation in exchange for making the innovation’s details public.

There are many arguments one can level against software patents. You can take the tack that software is essentially math (which it is), and is therefore not patentable (consider a patent on calculus, for example). You can claim that the source code to software is free speech, and it is therefore unconstitutional to limit it through the patent system. You can claim that software is fundamentally a creative art, and is protected by copyright, rendering the patenting of a piece of software akin to the patenting of a plot device in a novel.

But there is another argument that I’ve formulated recently that does not rely on an analogy. It is simply this: when the patent system was designed, its creators never considered that it would be used against those that might have only the best interest of society in mind, rather than their own personal gain. The mere notion that the patent system, a mechanism to promote knowledge sharing in a free society, would be used as a weapon against people and entities that would freely give away their work for anyone to use is absurd. And yet, this is where we find ourselves.

This is by no means a new topic (see Seth Shulman’s book Owning the Future), but the juxtaposition of the system’s goals with the way in which it is being used by today’s companies shed new light on the issue for me. The real innovators are being punished by the system, rather than rewarded. If a garage programmer comes up with a brand new algorithm for distributing data over the network, the software will likely contain a violation of some software patent, as most software does (things like scrollbars, clickable buttons, and one-click checkout have been successfully patented in the United States). The difference is that when a big company creates such software (IBM, Sun, Microsoft, etc.) they have big enough patent portfolios to use them to enter “patent deals” with those that would sue them. That is, the bigger company A’s patent portfolio is, the more likely it is that Company B, the company that wants to sue them, will have likewise violated one of Company A’s patents. In this way, software patents form a sort of “mutually assured destruction” between software patent super powers.

Where do independent developers fit in? Well, so long as they are not that successful, all is well, and they stay below the radar of the superpowers. But if they ever become a threat (GNU, Linux, etc.), then they attract attention and are threatened from the ever present “Patent of Damocles”. Microsoft has repeatedly made threats that they wish to come after GNU/Linux for patent violations, even though Linux is given away to everyone in the society - an asset for all to use freely. In short, the patent system has been perverted to punish the generous and to benefit the mercenaries.

It is, of course, much worse than this. Projects like FFMpeg seek to make media files available to play and edit on a wide variety of computers free of charge. This is a tremendous amount of work, is actively fought by commercial vendors, and has somehow been made illegal in the United States through patent law. In fact, established standards like MPEG4 cannot be implemented by free software authors because the algorithms outlined in the specification itself are patented. Authors who would give their software away free of charge cannot pay licensing fees, and therefore must implement their software in other countries.

Many will cite the United States patent system as rewarding innovators, and credit it with making the United States an intellectual capital in the world. The truth is that we are forcing bright talented software writers who would share their work freely to work in other countries because their work is illegal in the United States.

Perhaps the way forward is to grant those who release their work free a reprieve from prosecution under antiquated “intellectual property” laws until those laws can be updated to reflect the changing landscape of innovation in the software community.

Tags: patents, software