As regular readers of TLF know, I’m not a big fan of software patents. The more I learn about them, the more I’m amazed at the sheer scope of the problem. Every month, thousands of new software patents are issued. And at any given time there are dozens of software patent lawsuits before the courts. A few of them get big headlines, but most of them are never reported outside of the tech press.
So I’ve decided to do my small part to publicize the scope of the problem: every week, on Friday, I’m going to feature and analyze a software patent. In most cases, they’ll be software patents that are the subject of current litigation. My purpose for each weeks post will be to answer the questions: is this an obvious patent? And do patents like this promote innovation?
There’s enough software patent litigation out there that I don’t expect it to be that difficult to find a new case to highlight each week. But it would be a lot easier with help. So if you know of an example of an interesting software patent case–good or bad–shoot me an email at tlee -at- showmeinstitute.org and let me know about it.
In the future, this post will also serve as an index to the Software Patent of the Week series. Each week, I’ll add the latest software patent to this list, so that people can easily find the whole series.
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James Pinkerton predicts the rise of the “state owned mainstream media.” He points out that ever-increasing pressures on the margins of traditional media outlets like CNN and the New York Times will create a void that will be filled with government-run media sources like the BBC, NPR, and Voice of America:
This is the future of media: Some elements of the MSM will survive, probably. Bloggers will thrive, of course, but 99.9 percent of them are amateurs, without so many as one full-time employee. What will survive and thrive for sure, however, is the SOMSM. Every country with ambitions on the international stage will soon have its own state-supported media.
If war is too important to be left to generals, then news is too important to be left to reporters. Governments, including ours, have their own ideas, and they want to share them with us, the people–like it or not.
In addition, around the world, states will want to “help” their media. Not satisfied with what the free market is bringing about, politicians will offer to help out the invisible hand–help it, that is, with their own iron fist.
This strikes me as silly. Pinkerton’s actually wrong about bloggers–the percentage of amateur bloggers is much higher than 99.9 percent. But then there are more than 40 million blogs in the world, so even if only a tiny fraction of them are professionals, that still leaves plenty of room for high-quality reporting. Some bloggers (like me) are lucky enough to have jobs that allow blogging on the side. Others, such as Andrew Sullivan, have become successful enough that they generate enough ad revenue, speaking fees, etc to support themselves as full-time bloggers. Others, such as the writers of political magazines like Reason and The American Prospect blog as part of their day jobs. And still other blogs, such as Slashdot have become successful, ad-supported commercial news outlets with full-time staffs.
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TechDirt points to an excellent article on network neutrality:
Reality check: why doesn’t your landline phone do most of the things your cellphone does? It doesn’t have to worry about either battery life or size? The reason is that it’s attached to the traditional phone network on which innovation simply can’t happen. Telcos would like to make the Internet a similar innovation-free and profit-safe zone.
OK. This shouldn’t be allowed to happen. Proponents of net neutrality legislation say there oughtta be a law. But plenty of smart people–perhaps represented best by Martin Geddes–argue that a net neutrality law would be counterproductive. Turns out that neutrality itself is very hard to define. Should a neutral network be prohibited from blocking packets which attack the network itself? What about spam–does it have to be treated neutrally? What if someone invents a special purpose network good for connecting vending machines to something or other; does that network have to provide Google access in a non-discriminatory manner?
Once neutrality is defined by regulation and enforced by bureaucrats, the requirement itself could become an obstacle to innovation. Even more scary, given the skill of the telcos in manipulating congress (can you say “campaign contribution”?) and the FCC, could the neutrality requirement end up being enforced only against innovators? What if there were a five year wait for a “neutrality” permit before a new application could be deployed. Wouldn’t the telcos love that? Come to think of it, they have been pretty good lately at getting the FCC and the courts to throw obstacles in the way of VoIP.
The article goes on to argue that the real issue is the lack of competition in the broadband market. As some commenters to Tuesday’s post point out, there’s a lack of good data about exactly how many choices the average consumer has, but I think everyone can agree that more choice and competition would be better.
I also think it’s worth pointing out something about the traditional telephone network: the phone network is precisely the model that Larry Lessig holds up as a model for beneficial “common carrier” regulation. I suspect that a big part of the reason that cell phones have become so much more capable than their tethered counterparts is that the Baby Bells have been slowed down by the FCC’s “common carrier” regulations from offering new products and services. Lessig argues, with some plausibility, that those regulatory requirements led to the fiercely competitive dial-up Internet market, but it also caused the landline telephone market itself to be pretty stagnant. That doesn’t strike me as a good model for the Internet.
I was catching up on some reading last night and I thumbed through the April issue of Macworld. I came across not just one, but two articles plugging Handbrake, a video-conversion utility that allows consumers to transfer a variety of video content–including DVDs–to their iPods for viewing on the road.
The first article makes a passing reference to this article which claims that using Handbrake is fair use, even if creating it was clearly illegal. (I think this is wrong–the DMCA’s anti-circumvention provisions don’t include a fair use exemption) In either event, the articles’ authors certainly don’t seem especially concerned about the prospect of urging their customers to break the law.
Something’s clearly screwed up here. The rule of law works because of widespread public acceptance. When the law is widely despised and ignored–as it was during prohibition, for example–it inevitably fails to accomplish its stated purpose and undermines respect for the rule of law more generally.
Now, it seems to me that one could reasonably go either way here: one could be outraged at MacWorld for blithely encouraging lawlessness. Or one can be outraged that the DMCA makes innocuous activities like watching DVDs on an iPod illegal. Obviously, my sympathies are with the latter viewpoint. But I worry the most about people who are comfortable with the status quo, where the law is routinely flouted and nobody cares. If the law is stupid, it should be changed.
My side of the network neutrality debate may have resorted to paid astro-spam commenters to get their point across, but as far as I know, no regulation opponents have stooped to writing a cheesy song about the issue:
Three singer/songwriters met at a Los Angeles recovery center for those suffering from internet-related anger issues. How could Congress vote to destroy one of the only good things left in America? This made no sense! How could so few people be enraged? What were people doing to keep network neutrality the law of the land?
I get tired of repeating myself, so you can click here to see why this is nonsense. Oh, and you can listen to their cringe-inducing ditty here.
The Washington Post editorialized yesterday in opposition to regulating the Internet:
The advocates of neutrality suggest, absurdly, that a non-neutral Internet would resemble cable TV: a medium through which only corporate content is delivered. This analogy misses the fact that the market for Internet connections, unlike that for cable television, is competitive: More than 60 percent of Zip codes in the United States are served by four or more broadband providers that compete to give consumers what they want–fast access to the full range of Web sites, including those of their kids’ soccer league, their cousins’ photos, MoveOn.org and the Christian Coalition. If one broadband provider slowed access to fringe bloggers, the blogosphere would rise up in protest–and the provider would lose customers…
The serious argument for net neutrality has nothing to do with the cable TV boogeyman. It’s that a non-neutral net will raise barriers to entry just slightly–but enough to be alarming. To use a far better analogy: Competitive supermarkets aim to please customers by offering all kinds of goods, but the inventor of a new snack has to go through the hassle of negotiating for display space and may wind up on the bottom shelf, which dampens his incentives. Equally, if the owners of Internet pipes delivered the services of cyber-upstarts more slowly than those of cyber-incumbents, the incentive to innovate might suffer. Would instant messaging or Internet telephony have taken off if their inventors had had to plead with broadband firms to carry them?
This concern should not be exaggerated. Cyber-upstarts already face barriers: The incumbents have brand recognition and invest in tricks to make their sites load faster. The extra barrier created by a lack of net neutrality would probably be small because the pipe owners know that consumers want access to innovators.
Mike Masnick correctly notes that the Post exaggerates the competitiveness of the broadband market a bit–60 percent of zip codes may have four broadband service providers, but that doesn’t mean that 60 percent of consumers do–the vast majority have two or fewer. But I think the broader point of that paragraph–that there’s no danger of the Internet turning into a non-competitive service like cable TV–is exactly right. The value of the Internet stems from the availability of hundreds of thousands of small sites. The telcos would be shooting themselves in the foot if they cut off their customers’ access to those sites. And most broadband customers do have at least one option, so their ability to jerk their customers around is limited.
The editorial’s conclusion gets it right:
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The Register reports on what is quite possibly the awesomest object in the universe:
Astronomers have identified a massive comet-like structure – spanning a whopping three million light years – that is tearing through a distant galaxy cluster at more than 750 kilometres a second.
Yes, you read that right. A great ball of fiery gas, some five thousand million times the size of the solar system. Fortunately, it isn’t anywhere near Earth. The flaming gas-ball is in the Abell 3266 galaxy cluster, even more millions of light years away from us than it is across.
The fireball, which is the largest object of this kind ever identified, was spotted by stargazers using the European Space Agency’s XMM-Newton X-Ray telescope.
The author of the article showed remarkable restraint in avoiding references to “great balls of fire.”
Via IPCentral, I just finished reading “Patents and Business Models for Software Firms.” The authors assemble a large data set of patents, classify them as software and non-software, and do some statistical analysis as to which type of firms are most likely to take advantage of patents. They conclude, not surprisingly, that product-oriented firms are more likely to patent than service-oriented firms.
What they don’t do (and they acknowledge it) is determine any kind of causal connection among software patents, R&D spending, and innovation. And it seems to me it would be difficult to draw any conclusions about the impact of software patents on overall industry innovation using data of this sort. Software patents clearly benefit firms at the margin, or they wouldn’t seek them. But we can’t conclude from that fact that software patents benefit the industry overall–that would be a fallacy of composition.
It seems to me the best way of evaluating software patents empirically would be at the micro level: that is, look at individual patents and try to estimate the likelihood that the covered invention would have been created without the availability of software patents. Obviously, some will be hard cases, but there are also many easy cases.
It occurred to me that this is the sort of task that could be accomplished in a decentralized, peer produced manner: set up a web page where the user can look at a patent and rate it for obviousness, prior art, etc. There are probably enough geeks out there who hate software patents that you could analyze far more patents in far more detail than a traditional research team could hope to accomplish.
I just registered AmIObviousOrNot.com. I could set the site up, but my web development skills are rather rusty, so it would take me a while. Are there any PHP gurus out there who’d like to help out with a project like this?
After writing this morning’s post about VoIP and CALEA, it occurs to me that this sort of regulatory issue is probably one of the motivations behind Skype’s decision to make SkypeOut free in the United States. Skype and the FCC are heading for a collision course. Sometime in the middle of 2007, the FCC is probably going to try to force Skype to comply with CALEA. Skype will probably try to wash their hands of the matter, the way they did with E911. The FCC is unlikely to buy that, sparking a showdown.
Skype is likely to react by turning SkypeOut off (or threatening to) and blaming the FCC for the decision in hopes of creating a consumer backlash. The effectiveness of that tactic will depend on how many SkypeOut users they have. If there are enough of them, the FCC will be in the awkward situation of telling millions of Skype users that they’re no longer allowed to call their land line friends as they’d been doing for free for the previous year.
This reminds me of an excellent article in Reason back in 1999 about the fight over satellite transmission of local broadcast TV stations. Basically, satellite companies simply started transmitting the content consumers wanted in violation of the law. By the time the FCC got around to considering the issue, they had gotten so many customers that the FCC didn’t dare force them to stop.
Even if Skype isn’t able to make the FCC blink, the next year will be a fleeting opportunity to convert current landline users to IP-based telephony before going back to being a pure IP service.
Here’s Patrick Leahy’s take on network neutrality:
The last thing we should do is fix a problem that does not exist. We should also carefully examine any approach that would allow law enforcement agencies to set technology mandates, particularly given the challenges we have seen this year in the FBI’s own mishaps in its technology development.
The federal government so far has successfully allowed the Internet to flourish by avoiding design mandates and other limitations. We all must keep that important lesson in mind… The United States developed and nourished the Internet, and the world watches whenever we attempt to regulate it.
Oops, I’m sorry. That’s not about network neutrality, it’s another quote from his CALEA statement. My mistake. When it comes to network neutrality, Leahy seems quite comfortable with fixing problems that don’t yet exist.
The Technology Liberation Front is the tech policy blog dedicated to keeping politicians' hands off the 'net and everything else related to technology.