[This post will be geekier than average. Apologies in advance to non-programmers]
One of the interesting aspects of Intellectual Property and Open Source is the frequent use of programming metaphors to explain legal concepts. Given the audience, it’s a clever approach. Most of the analogies work well. A few fall flat.
I found one analogy particularly illuminating, albeit not in quite the way Lindberg intended. He analogizes the patent system to memoization, the programming technique in which a program stores the results of past computations in a table to avoid having to re-compute them. If computing a value is expensive, but recalling it from a table is cheap, memoization can dramatically speed up computation. Lindberg then compares this to the patent system:
The patent system as a whole can be compared to applying memoization to the process of invention. Creating a new invention is like calling an expensive function. Just as it is inefficient to recompute the Fibonacci numbers for each function invocation, it is inefficient to force everyone facing a technical problem to independently invent the solution to that problem. The patent system acts like a problem cache, storing the solutions to specific problems for later recall. The next time someone has the same problem, the saved solution (as captured by the patent document) can be used.
Just as with memoization, there is a cost associated with the patent process, specifically, the 20-year term of exclusive rights associated with the patent. Nevertheless, the essence of the utilitarian bargain is that granting temporary exclusive rights to inventions is ultimately less expensive than forcing people to independently recreate the same invention.
The caveat at the beginning of the second paragraph is huge. In the software industry, at least, any patent filed in the 1980s is virtually worthless today. But even setting that point aside, Lindberg’s analogy provides a helpful analogy to explain why patents are a bad fit for the software industry: it’s like implementing memoization using a lookup table without a hash function.
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I was a HUGE fan of Mattel handheld games back in the late 70s, and I played “Football I” and “Football II” for countless hours with friends. And now you can get it on the iPhone!
Sure it’s probably still primitive as hell — you could only run the ball in Football I ! — but I bet it’s still a lot of fun.
I still have the old Football II handheld at my house and have been trying to teach my kids how to play it. (Colleco’s handheld Football game was actually better but I don’t have that one anymore). My kids don’t quite get the fun in frantically mashing buttons to move little red LED hashes across the screen. They are spoiled I tell you!
The Battlestar Galactica game was just awesome too. Video games have come a long, long way since then, but these old handheld games were addictive in their own right.
I’m reviewing Van Lindberg’s Intellectual Property and Open Source for Ars Technica. The first chapter is an introduction to the theoretical concepts that Lindberg describes as the “foundations of intellectual property law”—public goods, free-riding, market failure, and so forth. I’ve found several of the assertions in this chapter frustrating.
For example, on p. 8, Lindberg writes:
We want more knowledge (or more generally, more information) in society. As discussed above, however, normal market mechanisms do not provide incentives for individuals to create and share new knowledge
Italics mine. Now, this claim is simply untrue. Normal market mechanisms do, in fact, create incentives for individuals to create and share new knowledge. Mike Masnick has offered one excellent explanation of how they do so. See also Chris Sprigman and Jacob Loshin and the restaurant industry. Plainly, lots of new knowledge is created without the benefit of copyright, patent, or trade secret protection.
It’s likely that Lindberg is just being sloppy here, that he meant that markets do not provide sufficient incentives for creativity. This is a perfectly plausible view—indeed, it’s the mainstream view among scholars of patent and copyright policy. But even this weaker formulation is controversial. Boldrin and Levine, for example, are two respected economists who deny it. Even this weaker formulation, therefore, is too strong. Certainly many scholars (myself included) believe markets produce insufficient creative expression, but the point has certainly not been proven conclusively.
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… environmental attorney Dusty Horwitt, who recently published this outlandishly stupid and highly offensive editorial in the Washington Post calling for an information tax to reduce the supply of information in society. “[I]n our information-overloaded society,” he argues, “the concept of [too much information] is no joke. The information avalanche coming from all sides — the Internet, PDAs, hundreds of television channels — is burying us in extraneous data that prevent important facts and knowledge from reaching a broad audience.” His repressive solution?
It’s possible that over time, an energy tax, by making some computers, Web sites, blogs and perhaps cable TV channels too costly to maintain, could reduce the supply of information. If Americans are finally giving up SUVs because of high oil prices, might we not eventually do the same with some information technologies that only seem to fragment our society, not unite it? A reduced supply of information technology might at least gradually cause us to gravitate toward community-centered media such as local newspapers instead of the hyper-individualistic outlets we have now.
Mike Masnick of TechDirt and Richard Kaplar of the Media Institute do a fine job of ripping Mr. Horwitt’s absurd proposal to shreds. As Kaplar argues, it is “sheer lunacy” to “tax the technologies of freedom.” Unlike gasoline, there are no good reasons — not one — for government to ever take steps to reduce the supply of information. Mr. Horwitt is calling for public officials to use their taxing powers to destroy or limit opportunities for human communications and the free exchange of speech and expression. It is completely antithetical to a free society.
Moreover, if Mr. Horwitt really thinks there is too much information in this world, then perhaps he should lead by example and take his own site offline first! The rest of us will take a world of information abundance over a world of information scarcity any day of the week.
Apropos Julian’s excellent story of watchlist incompetence, a Slashdot commenter linked to this gem:
Having covered free speech and media policy issues for many years now, one of the arguments I hear a lot is that we moderns have an unnatural fascination with murder, mayhem, and violence as well as gossip and celebrities. Social critics and proponents of media content regulation often wax nostalgic about the supposed “good ol’ days” when all we thought and talked about was enlightened and enriching topics.
It’s all complete nonsense. Anyone who has seriously studied our nation’s history — or, for that matter, the history of any country or civilization — knows that we humans have always been fascinated by the morbid and tales of debauchery, especially when those tales involve public officials or celebrities.
I was reminded of this again today when reading two articles in the Washington Post.
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Declan McCullagh has a great write-up on presumptive Democratic VP nominee Joe Biden over at CNET. Some highlights:
- Biden was one of only four Senators invited to a champagne reception with Jack Valenti for his work on the DMCA
- Surveillance legislation by Biden inspired Phil Zimmermann to write PGP (Pretty Good Privacy), an encryption program
- Biden wrote an early precursor to the USA PATRIOT Act
- Posting the anarchist cookbook online is now a felony thanks to Biden, resulting in a single conviction of a 20 year-old webmaster
- Biden proposed spending $1 billion so cops could police P2P networks
Check out the post to read more about Biden’s spotty record on tech policy.
Just to chime on Berin’s post two other things that readers ought to know: the ad revenue we generate is trivial—on the order of dozens of dollars per month—and none of us get a dime of it as individuals. Rather, the money gets plowed into shared expenses for the site, such as advertising and promotional materials, hosting costs, etc. Sonia won’t get a dime of the advertising revenue generated by the McCain ads on this site, so whatever her reasons for praising his tech agenda, the lure of dozens of dollars of McCain payola from this site wasn’t among them.
William Kennard, Obama for President Telecommunications Adviser, describes the FCC’s jurisdiction in the Comcast case as “murky” today on C-SPAN’s “The Communicators.” Kennard went on to say that enshrining net neutrality into law would be necessary to clear up this authority issue.
This is a guy who knows what he’s talking about. As a former chairman and general counsel for the FCC, he knows just as well as anyone else where the commission’s authority begins and ends.
Many folks involved in the tech policy world don’t agree with the bloggers here at TLF, who oppose network neutrality regulation. But, I’m sure everyone in the tech community would agree that we should maintain the rule of law and stop the abuse and unlawful expansion of government power—something Kennard seems to believe is happening at the FCC.
It seems as though Kevin Martin needs to hit the books and start looking into the legality of his own actions. I hope the good folks at Comcast do the same. With any luck, we’ll soon be seeing both parties in court.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.