Matt Yglesias makes a fair point about word choice in yesterday’s op-ed:
I guess I’m not thrilled with the word choice around “bad for the software industry.” Patents are bad for the development of new software. If you define “software industry” as “incumbent for profit software firms” it may be good for the “industry.” The thing to keep in mind with any sort of IP protection is that strong IP creates, on the one hand, an incentive for innovation but at the same time it also creates a barrier to innovation. In the case of software patents, the balance tips overwhelmingly in the direction of creating barriers — indeed, the main incentive it creates is merely for the innovative production of patents rather than of actual products.
Right. What I should have said is “bad for competition and innovation in the software industry.” For a variety of reasons I’ve discussed at length here on TLF, the incentive for innovation caused by software patents is pretty small. Therefore, the primary effect of software patents is to give an advantage to companies who primarily have good patent lawyers at the expense of companies who have only good engineers. The larger, less dynamic parts of the software industry are probably helped by software patents.
In addition to subscribing to our own podcast, you should also subscribe to Don Marti’s LinuxWorld podcast. It’s definitely more techie and less policy than our podcast, but it has a fair amount of interesting policy stuff as well.
This week’s episode, for example, is an interesting discussion with Brian Aker of MySQL. The first half is a fairly geeky discussion of MySQL features. But in the second half of the podcast, Don asks about the economic motivation for free software. Aker argues that there are fundamentally two motivations, whether the contributions are from an individual or a company: publicity and testing. That is, first, that opening your software up will cause it to be more widely distributed and popular, hopefully leading to more opportunities to sell services in the future. And secondly, if you have more users, and those users have access to your source code, you’re more likely to have unsolicited bug reports and even (if you’re lucky) bug fixes. Aker says that most free software developers—and companies supporting free software—are not doing it out of abstract altruism. Surprisingly for those who think the free software movement is populated entirely by dirty hippies, opening one’s source code can sometimes be a savvy business strategy.
Aker has more interesting things to say, and I bet Don will have more interesting guests in future weeks, so I encourage you to check out the podcast.
I make the case against software patents in the New York Times today. I use Bill Gates’s 1991 memo to his executives (which I discussed in Ars back in March) as a springboard to talk about the Verizon-Vonage dispute:
The Gates memo predicted that a large company would “patent some obvious thing,” and that’s exactly what Verizon has done. Two of its patents cover the concept of translating phone numbers into Internet addresses. It is virtually impossible to create a consumer-friendly Internet telephone product without doing that. So if Verizon prevails on appeal, it will probably be able to drive Vonage out of business. Consumers will suffer from fewer choices and higher prices, and future competitors will be reluctant to enter markets dominated by patents.
But don’t software companies need patent protection? In fact, companies, especially those that are focused on innovation, don’t: software is already protected by copyright law, and there’s no reason any industry needs both types of protection. The rules of copyright are simpler and protection is available to everyone at very low cost. In contrast, the patent system is cumbersome and expensive. Applying for patents and conducting patent searches can cost tens of thousands of dollars. That is not a huge burden for large companies like Microsoft, but it can be a serious burden for the small start-up firms that produce some of the most important software innovations.
Yet, as the Vonage case demonstrates, participating in the patent system is not optional. Independent invention is not a defense to patent infringement, and large software companies now hold so many patents that it is almost impossible to create useful software without infringing some of them. Therefore, the only means of self-defense is the one Mr. Gates identified 16 years ago: stockpile patents to use as bargaining chips in litigation. Vonage didn’t do that, and it’s now paying a very high price.
FCC Commissioner Robert McDowell marked his one-year anniversary at the commission last week. More than a symbolic milestone, the anniversary means the end of most of the conflict-of-interest restraints that — due to his prior tenure as a lobbyist — has kept him from voting on some key issues. Now that he’s freed, the commission will truly have, for the first time since Chester Arthur was president I believe, a full contingent of voting members.
McDowell marked the occasion by, appropriately enough, speaking his mind. He gave a barnstorm of a speech at the Broadband Policy Summit, taking a hefty swipe at the OECD and its recently-released stats on broadband. The OECD showed the U.S. lagging at 15th place interenationally in broadband penetration, leading to massive hangwringing from the media and from most policymakers. But McDowell, playing gloombuster, took issue with the OECD’s numbers in detail, pointing out its “fundamental flaws.” Among his criticisms:
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Google’s mapping service just introduced a new feature called “Street View,” offering detailed photos of addresses in San Francisco, New York, Las Vegas, Denver and Miami. While the company might not be breaking any privacy laws, the service raises concerns that need to be addressed.
The photographs are not live and were taken from a device with multiple cameras attached to a car that drove down each available street. The problem for some is that the cameras took photos of people not expecting to be photographed and broadcast across the Net. There are photos of women sunbathing at Stanford University, a man caught urinating in San Bruno, Calif., and a very clear picture of a woman’s thong underwear as she was getting into her truck.
Google argues that the photos are “no different from what any person can readily capture or see walking down the street.” That’s true if you can see the image for a few minutes and then it disappears, or if it is a random photo from a camera phone posted online. However, that’s not how it works.
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Read more here.
Larry Lessig explains the difference between stealing a laptop and including an out-of-print book in a search engine. Yes, someone really did suggest that suggest those actions were equivalent. No, that person wasn’t very bright.
Rep. Ed Markey (D-MA), chairman of the House subcommittee on telecommunications, wants the Federal Communications Commission to re-regulate “dedicated special access” services (the telephone services provided to businesses and institutions, as opposed to residential customers). He recently sent a letter to the five commissioners, which said:
My concern is that significant concentration in the special access market through mergers and bankruptcies, combined with the [FCC’s] deregulatory pricing regime, has resulted in higher prices and little competitive choice for special access connections. These are also the conclusions of a November 2006 Report by the General [sic] Accountability Office (“GAO”) ….
I respectfully request each of you to respond to me by close of business on June 11, 2007, as to whether you support or oppose completing any review of special access issues necessary to adopt an Order revising such rules by no later than September 15, 2007.
Markey’s facts are wrong and his prescription will harm rather than promote competition.
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MikeT is right, this makes me foam at the mouth. Or at least it would if I were sure it wasn’t a parody. I mean, if their business model works, the patent system is obviously broken, right?
1. You submit vulnerabilities you have discovered, without telling anyone else.
2. If we accept them, we work together to develop a fix.
3. We develop intellectual property relating to the fix, and license or enforce it
4. You share in the profits
In particular:
We actively market the IP. Depending on the situation, potential customers may include: the vendor, security providers such as suppliers of intrusion prevention technologies, and competitors of the vendor
We encourage the customers to seek a licence and apply our solution.
We intend to enforce our IP rights if necessary.
Wow. This company would have customers the way the mafia has customers. I sincerely hope this is an elaborate joke rather than a cynical abuse of the patent system.
The podcast is considerably longer than usual this week because it featured an extremely productive discussion with Prof. Tim Wu on the merits of his “wireless Carterfone” proposal. Normally, we try to keep the podcast under half an hour, but one of the great things about podcasting is that here’s no reason we have to stick to the same length for every episode. In this case, the discussion was just too good to truncate. I encourage you to listen in—we’ve got a handy in-browser listening widget—and if you like what you hear you should subscribe.
One point I want to clarify: around minute 11, I observed that forcing unwilling incumbents to open their markets is usually an “expensive and messy procedure.” Wu responded that this amounted to preemptive surrender, and that we shouldn’t shy away from enacting good policy simply because it faces entrenched opposition.
Which is a good point, but let me expand a bit on what I meant. Obviously, if the problem were simply that the carriers don’t like a given proposal and will lobby against it, that’s not a good rationale for opposing it. However, I think two additional considerations are relevant. First, regulatory uncertainty is always bad. When the rules are unclear, existing firms will be reluctant to invest and new firms will be hesitant to enter the market. Moreover, those firms that do enter the market sometimes get the rug pulled out from under them when the regulatory body changes course—think of the way the CLECs got hosed in the 1990s.
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The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.