I’ve written two articles on the Protect IP Act of 2011, introduced last week by Sen. Leahy (D-Vt.).
For CNET, I look at some of the key differences, better and worse, between Protect IP and its predecessor last year, known as COICA.
On Forbes this morning, I have a long meditation on what Protect IP says about the current state of the Internet content wars. Copyright, patent, and trademark are under siege from digital technology, and for now at least are clearly losing the arms race.
The new bill isn’t exactly the nuclear option in the fight between the media industries and everyone else, but it does signal increased desperation. Continue reading →
The English language is public domain (the language itself, not everything said with it). So it’s worthless, right? No dollars change hands when people use it. Perhaps it could be made worth something if someone were to own it. The owner could charge a license fee to people who use English, making substantial revenue on this suddenly valuable language.
Congress can take works in the public domain and make intellectual property of them according to the Tenth Circuit Court of Appeals in a case that approved Congress “restoring” public domain works to copyrighted status. (The case is Golan v. Holder, and the Supreme Court has granted certiorari.)
But would we really be better off if the English language were given a dollar value through the mechanism of ownership and licensing? No. What is now a costless positive-externality machine would turn into a profit-center for one lucky owner. The society would not be better off, just that owner. If we had to pay for a language, we would regard that as a cost.
In a similar vein, Mike Masnick at TechDirt indulges the somewhat tongue-in-cheek observation that Microsoft costs the world economy $500 billion by accumulating to itself that would have gone to other things. It’s a sort of Broken Window fallacy for intellectual property: the idea that creating ownership of intellectual goods creates value. What is not seen when intellectual property is withheld from the public domain is the unpaid uses that might have been made of it.
Now, Microsoft has reaped wonderful benefits from its intellectual creations because it has bestowed wonderful benefits on societies across the globe. But might it have provided all these benefits for slightly less reward, leaving more money with consumers for their preferred uses?
This is all a way of challenging the mental habit of assuming that dollars are equal to value. In the area of intellectual property (whether or not protected by federal statutes), things that have no effect on the economy (because they’re in the public domain) may have huge value. Things privately owned because of intellectual property law may have less value than they should, even though their owners collect lots of money.
“On the whole, the results certainly seem to suggest that patent trolls with software patents do very much view the system as a lottery ticket, and they’re willing to use really weak patents to try to win that prize. That is not at all what the patent system is designed to do, but it’s how the incentives have been structured — and that seems like a pretty big problem that isn’t solved just by showing how many of these lawsuits fail. The amount of time and resources wasted on those lawsuits, as well as the number of companies who pay up without completing a lawsuit, suggest that there is still a major problem to be dealt with.”
So writes the always-thoughtful Mike Masnick at Techdirt. He is referring here to a newly-published article by John R. Allison, Joshua Walker and Mark Lemley, released as a Stanford Law and Economics Olin Working Paper. Mike has written frequently about patent trolls—companies that buy up patents from inventors and then make money by litigating or threatening to litigate against potential infringers—and never with much sympathy. Continue reading →
On the podcast this week, Timothy B. Lee, PhD candidate in computer science at Princeton University and fellow at Princeton’s Center for Information Technology Policy, discusses a variety of issues. Lee parses new net neutrality nuances, addressing recent debate over prioritization of internet services. He also discusses wireless spectrum policy, comparing and contrasting a strict property rights model to a commons one. Lee concludes by weighing in on potential software patent reform, referencing Paul Allen’s wide-ranging patent-infringement lawsuits and the Oracle-Google tiff over Java patents.
Do check out the interview, and consider subscribing to the show on iTunes. Past guests have included Clay Shirky on cognitive surplus, Nick Carr on what the internet is doing to our brains, Gina Trapani and Anil Dash on crowdsourcing, James Grimmelman on online harassment and the Google Books case, Michael Geist on ACTA, Tom Hazlett on spectrum reform, and Tyler Cowen on just about everything.
So what are you waiting for? Subscribe!
I don’t have a great deal to add to coverage of last week’s big patent story, which concerned the filing of a complaint by Microsoft co-founder Paul Allen against major technology companies including Apple, Google, Facebook and Yahoo. Diane Searcey of The Wall Street Journal, Tom Krazit at CNET News.com, and Mike Masnick on Techdirt pretty much lay out as much as is known so far.
But given the notoriety of the case and the scope of its claims (the Journal, or at least its headline writer, has declared an all-out “patent war”), it seems like a good opportunity to dispel some common myths about the patent system and its discontents.
And then I want to offer one completely unfounded theory about what is really going on that no one yet has suggested. Which is: Paul Allen is out to become the greatest champion that patent reform will ever know.
Continue reading →
Reading the 2002 edited volume, From 0 to 1: An Authoritative History of Modern Computing, I came across an interesting history of the first software patent—a business history, as opposed to a legal history. I hadn’t seen this anywhere before, so I’ll recount it here.
Luanne Johnson, president (now co-chair) of the Software History Center, tells the story of Martin A. Goetz at Applied Data Research (ADR), a Princeton, New Jersey company founded in 1959 to sell computer programming services.
In 1964, computer manufacturer RCA approached ADR about writing a flowcharting program that RCA would provide to users of its RCA 501 computer at no cost. ADR designed and wrote the program, AUTOFLOW, and offered it to RCA for $25,000. But RCA didn’t want it at that price. Marty Goetz then went to work on a different approach to recouping the $10,000 his company had laid out to write AUTOFLOW.
There were only hundreds of companies using the RCA 501, to whom he might have sold directly. So, seeing a larger market among users of the IBM 1401, Goetz and his colleagues re-wrote AUTOFLOW for that computer. They ultimately produced superior flowcharting software to what IBM offered its customers. AUTOFLOW was capable of flowcharting the logical sequence of existing software, easing the design of software to compliment what was already in use on IBM machines. Writes Johnson: Continue reading →
I dashed off a quick analysis of the Bilski decision for CNET yesterday (see “Supreme Court Hedges on Business Method Patents”), a follow-up to a piece I wrote for The Big Money when the case was argued last fall. (See “Not with my Digital Economy, You Don’t.”)
The decision was a surprise for me. I had fully expected the Court to reject outright the experiment in granting patents to paper-and-pencil business methods launched by the Federal Circuit in 1998 with the State Street decision. Especially since the Federal Circuit itself, in its rejection of Bilski’s application, had all but dismissed State Street as the disaster most businesses—even businesses who have benefited from business method patents–know it to be.
Continue reading →
I’m quoted briefly in a story today in E-Commerce Times (see “Apple’s Patent Attack: This Too May be Overhyped” by Erika Morphy) about the patent lawsuit filed this week by Apple against rival mobile device maker HTC.
Apple, of course, produces the iPhone, while HTC makes Google’s Nexus One and other devices that run on Google’s Android operating system.
So right from the start this case looks less like a simple patent dispute and more like a warning shot over Google’s bow. The two companies are increasingly becoming rivals. In August of last year, Google CEO Eric Schmidt resigned from Apple’s board. Apple CEO Steve Jobs wrote at the time, “Unfortunately, as Google enters more of Apple’s core businesses, with Android and now Chrome OS, Eric’s effectiveness as an Apple Board member will be significantly diminished….” Continue reading →
Over at Convergences I ponder a version of Mark Lemley’s argument to the effect that confusing patents tied up in administrative disputes are in effect the same as no patents. I write:
I recently read “Patenting Nanotechnology” by law prof Mark Lemley. Excitement about (and fear of) nanotechnology seems to be waning rather than waxing. The article nonetheless includes a curiously paradoxical line of argument about intellectual property that I think is worth setting out in detail.
Presently there is some concern that there are already too many overlapping nanotechnology patents, and/or too many nanotechnology patents that cover basic research concepts as opposed to actual useful products. A number of observers have warned that these patents could interfere with ongoing nanotechnology research. This is a familiar theme over the past couple decades of patent scholarship.
Of course, patents (with all their warts) were around during the nineteenth and twentieth centuries, too, when a lot of important advances were made in technology. All kinds of things from sewing machines to radios were developed, and it all worked out okay in spite of much patent nonsense being involved.
Now, here is where Mark comes up with a twist on the familiar arguments. To help make his paper about nanotechnology more interesting, he seems to want to build up the case that nanotechnology is different from earlier technologies, so that the patent system might cause problems for nano that they did not cause for earlier technologies. So he goes through each earlier technology in some detail, and argues that in each case, in effect, for each of these key earlier technologies, patent protection was in effect non-existent. In the case of sewing machines, for example, the patents were tied up in litigation; in the case of radio, WWI intervened and the patents were taken over by the government.
Therefore, he argues, nanotechnology will be the first important technology that is in effect actually protected by patents. He goes on to conclude that there is no reason to worry about this yet. This conclusion seems sensible enough. So… what?
With his argument that previous key technologies were in effect devoid of patent protection as a practical measure, even though they were patented, well, he’s created a mythical monster, the worm who eats his own tail. I don’t think he fully realizes this, so I will play with the idea a little bit.
For the results of my exploration, kindly visit Convergences.
This looks like a good one to me. An ITIF event tomorrow called “Info-Communism:” A Progressive Path Forward or a Political and Intellectual Dead End?
Overheated rhetoric around information policy and intellectual property damages the quality of the debate. In this paper, featured speaker and Syracuse University information studies professor Milton Mueller warns against pouring these debates into old ideological molds. Doing so preserves controversy rather than fostering the discovery of common ground. (Or “commons” ground—couldn’t help it!)
I don’t know that this forum will solve the problem, but I know it will be interesting. The sign-up page indicates that the event will be streamed.