via Rick’s Posterous

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.

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.

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.

Blog of helios: Linux – Stop holding our kids back

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.

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

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.

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.

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