We are here at the Internet, where we’ve secretly replaced the US patent database they usually serve with Google. Let’s see if anyone can tell the difference!
December 2006
I’ve found that defenders of software patents tend to focus their energies on debunking common arguments against software patents. They never seem to get around to explaining why software patents are a good idea to start with. Solveig’s Singleton’s paper fits with this trend. Here’s the closest she comes to describing the benefits of software patents:
Early on, software was often parceled out along with hardware; trade secret offered protection; the cost was, due to lack of disclosure, some clever ideas have een lost. Then it became generally accepted that software would be protected by opyright. This works well against some types of copying (for example, counterfeiting) and for some types of programs (for example, games). But patents were seen as providing more certain protection against the copying of the function of a program more broadly (“look and feel” cases that sought to broaden copyright protection being problematic). The term of protection for copyright is unnecessarily long for software. In theory, patent law would extend protection only to the non-obvious and novel. That together with software’s technical nature seemed a good fit with patent law.
It’s certainly true that patents provide “more certain protection against the copying of the function of a program more broadly.” But it’s far from obvious that “protection against copying” is always desirable. Outside the patent context, such copying is often known as “competition,” and public policy generally aims to enhance it. I’m glad that Microsoft copied Apple’s operating system, Netscape’s browser, and Google’s search engine. It’s been good for me as a consumer. It’s not obvious to me what purpose is served by making it harder for companies to copy the broad features of each others’ products.
Kirk Douglas warns young people that the world is going to hell:
THE WORLD IS IN A MESS and you are inheriting it. Generation Y, you are on the cusp. You are the group facing many problems: abject poverty, global warming, genocide, Aids, and suicide bombers to name a few. These problems exist, and the world is silent. We have done very little to solve these problems. Now, we leave it to you. You have to fix it because the situation is intolerable.
My old boss David Boaz sets the record straight:
let’s take a closer look at the problems the long-lived actor identifies. Abject poverty? Sure, but nothing like 1916, when Douglas was born. The percentage of people who are “absolutely poor” has fallen from 80% of the world’s population in 1820 to 50% around Douglas’s birth to just over 20% now. The average person in the developed world has a real income about five times as high as the average person 50 years ago. People in India and China have mostly – though not all – moved out of the back-breaking poverty that their ancestors knew for centuries. In America’s inner cities, the level of actual deprivation is far less than in generations past, though hopelessness and despair remain serious challenges…
Since ancient times people have worried that our best days were behind us, that things were getting worse, that we were running out of resources, that our morals had declined. And yet, at least since the rise of liberalism and the Industrial Revolution, the statistics tell us that things are getting better, that – as the subtitle of a new book puts it, “we’re living longer, healthier, more comfortable lives on a cleaner planet.” Somebody needs to send Kirk Douglas a copy of that book, The Improving State of the World by Indur Goklany.
Amen to that.
My co-blogger Solveig Singleton has an interesting paper on software patents over at PFF. I found her arguments against abolishing software patents unpersuasive (more on that later, perhaps) but I thought her proposed solutions were eminently sensible. As she argued in her excellent amicus brief, she suggests that the bar for non-obviousness be raised to weed out trivial patents. I also think this is a great idea:
Another set of effective solutions would make the institutions responsible for the incremental development of patent law, the Patent and Trademark Office and the courts, more effective. The best way to do this is indirectly, by introducing an element of competition. More than one federal circuit should become involved in hearing appeals of patent cases; leaving the Federal Circuit alone to do the job means that difficult legal questions do not have the benefit of a contest of equals.
It seems to me that the problems with our patent system are at least partly a tale of regulatory capture. Congress created a special court in the early 1980s to deal with patent law. Understandably, presidents started appointing former patent lawyers to serve on the court. And, not surprisingly, those judges who used to be patent lawyers have taken an increasingly expansive view of where the patent system ought to apply.
Reshuffling the appeals courts so that the various federal circuits once again shared jurisdiction over patent appeals would restore some impartiality to a court that appears to have acted largely as a creature of the patent bar.
Of course, I also think that the courts should refuse to allow patenting of software. But these reforms would solve problems that extend beyond software patents, so these are good ideas whether or not you think software patents should be abolished. The paper is short, sweet, and to the point, so I encourage you to check it out.
We can all agree how pernicious the DMCA is when it’s used by the MPAA to put out of business Load ‘N Go–a small company that sold iPods preloaded with movies along with the DVDs of those movies. Piracy was not an issue here because consumers had to buy the DVD of every movie loaded onto their iPod. The reason MPAA acted, of course, is because Hollywood wants us to pay twice for movies–once for a DVD and again for an iPod or PC version.
Sometimes, however, the content industry has a point. Today Todd Dominey posted on his excellent blog his experience getting rid of his 3000-CD collection and going completely digital. He ripped everything to his computer and then sold all the CDs on the Amazon Marketplace. Today’s post is a great howto for folks with big collections. The thing is that he kept the music, but every used CD he sold is arguably one new CD the recording industry didn’t sell. (There’s probably not a one-to-one correlation there, but probably pretty close.) As more folks move to digital, this practice will only grow.
As far as I can tell this is plain and simple copyright infringement. I don’t think DRM coupled with the DMCA is the solution. Given the new reality of the internet, the only choice the content industry has is to change its business model. But when you see something like this, you have to feel their pain. I believe ripping your CDs or DVDs for use on your portable devices is fair use, and I think the Copyright Office should have issued a DMCA exemption for the practice. That said, you can’t have your cake and eat it, too.
The FCC website being what it is (or maybe politics being what they are), an agenda is not yet available for the December 20th meeting of the FCC. All eyes are on this meeting because commissioners (including recently de-recused Commissioner Rpbert McDowell) will vote on the AT&T-Bell South merger. However, it now looks like Chairman Martin is also going to take the opportunity to push through a resolution to the cable franchising proceeding that’s been open since January. According to Multichannel News, Martin has circulated a proposed rule that would require local franchising authorities to act on an application for a franchise within 90 days.
Martin, who waited for cable-franchising reform to fizzle on Capitol Hill before shopping his own plan, said FCC pressure on cities and towns to act promptly would produce several benefits, including spurring broadband deployment and lowering cable bills. The 90-day cap would apply to entities that had existing approval to occupy public rights of way presumably phone companies initiating service and cable incumbents seeking renewal. … Martin, who has circulated his plan among the other four FCC members, would like it voted on at the agency’s Dec. 20 open meeting.
There has been a flurry of activity in the docket for this proceeding, so it looks like it might happen. Not having seen the draft rule, I wonder what happens after the 90 days are up. In our recent law review article and comments to the FCC, Jerry Ellig and I proposed just such a regulatory shot clock. We proposed that if a locality doesn’t make a decision either way on an application, then the franchise would be deemed granted with a set of default terms, which could be set the same terms of the incumbent’s franchise, for example. Anybody seen the draft rule?
A poll out today from the Washington Post finds that two-thirds of Americans believe their government is spying on them. Specifically, the poll asked if the FBI and other agencies are “intruding on some Americans’ privacy rights” in terrorism investigations. 66% said YES, up from 58% in a poll taken in September 2003. The Post poll also found that “Support for intrusive tactics has dropped even more significantly during that time. A bare majority, 51 percent, feel the tactics are justified, down from 63 percent three years ago.” And you might recall that an earlier privacy poll conducted by CNN & Gallop in February of this year found that 21% of Americans think federal agents have listened in on their phone calls!
Are we Americans too paranoid? I don’t know, but I think it’s generally a good thing that so many people are skeptical about their government’s actions. Of course, I do not for one minute think that 21% of Americans actually have their phones tapped right now. Just do the math on that. In a nation of 300 million that would mean our government is tapping 63 million phones. I sincerely doubt our government is big enough or competent enough to tap 63 million phones at once and process all that information.
Regardless, it’s good that citizens are skeptical and vigilant about the liberty and privacy rights.
We learned back in August that I am not Timothy Berners-Lee, inventor of the World Wide Web. I am, in fact, a “shill from an ideologically oriented corporate funded think tank” who makes “fake arguments.” Now, we learn that there’s another Timothy Lee trying to horn in on the lucrative pundit-shills-named-Timothy-Lee business. This one claims to be “an Arizona native and member of the Arizona and California Bar Associations” and “director of Legal and Public Affairs for the Center for Individual Freedom in Alexandria, Va.”
It seems that the vast right-wing conspiracy has decided that one deceptively-named Timothy Lee is not enough. So they’ve been scouring the country for anyone named Timothy Lee who can string together two coherent sentences. That way, even if I get hit by a bus, they’ll be able to trot out this new Timothy Lee to fill in for me, ensuring that there will always be a right-wing Timothy Lee to comment on technology issues. The Hands Off the Internet coalition is already doing their part to raise the profile of this new and improved Timothy Lee.
Mr. Lee, incidentally, has some reasonable things to say about franchise reform and network neutrality regulation, so I encourage you to check out his article in the Tucson Citizen.
Joe at Techdirt spots another example of every libertarian’s favorite fallacy:
Back in September, we noted that Microsoft had commissioned a study that tried to demonstrate how much of a boon the release of Vista would be to the European economy. The company bragged about the thousand of IT jobs that would be “created” due to people working on Vista installations. Of course, this was precisely the opposite of what the company should be touting. It would be far more impressive if they could anticipate how many existing positions in IT could be eliminated, freeing up workers to do jobs that produce more value than installing an operating system. Well, it sounds like the US is in for even more fun once Vista is released here. The company says it will create 100,000 jobs, and $70 billion worth of business. Put another way, companies will have to bring on 100,000 more people and spend another $70 billion to deal with the launch, if the figures are accurate. Why are they bragging about this again?
I think the basic insight here is correct, although it depends on what the workers are doing. If most of those 100,000 people are needed just to get Vista up and running, that’s clearly not something Microsoft should be bragging about. On the other hand, if most of those workers are engaged in (for example) creating new software products that rely on new features in Vista, then the number of workers employed might be a reasonable proxy for the amount of wealth created. In either event, Joe is clearly right that the number of workers required to administer a piece of software doesn’t tell us very much about how valuable it is.
While in this country we’re debating whether the government should hand over to a single entrepreneur 30 of the 36 MHz of prime radio spectrum slated for auction after the digital TV transition, in the UK they’re doing things a little different. According to GigaOm:
British carriers might have spent over 20 billion pounds on 3G wireless auctions several years ago, but they will soon get a chance to spend even more for “the UK’s largest single release of radio spectrum”, says British regulator Ofcom. This morning Ofcom outlined a plan for wireless auctions, which will be technology agnostic, but could include spectrum for WiMAX, mobile TV, mobile broadcast and even 3G. Ofcom is asking for a consultation period until March 2007. Ofcom says the three bands that will be available are: 2010-2025 MHz, 2290-2300 MHz and 2500-2690 MHz, and a total of 215 MHz will be on the market. There will be two initial auctions which will be part of a bigger plan to sell off up to 400 MHz over the following years.
You heard right, 400 Mhz of technology agnostic spectrum. I invite my friends concerned about net neutrality to look at this. We all would like to see new competition in broadband, and spectrum reform seems to me to be the first obvious step in that direction.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.