My friend and former colleague Radley Balko makes the case for the repeal of the online gambling ban:
Articles by Tim Lee 
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Tech Policy Weekly from the Technology Liberation Front is a weekly podcast about technology policy from TLF’s learned band of contributors. The shows’s panelists this week are Adam Thierer of the Progress and Freedom Foundation, Tim Lee of the Cato Institute, Braden Cox of the Association for Competitive Technology, and Fred von Lohmann of the Electronic Frontier Foundation. Topics include,
- Fred von Lohmann makes the case for collective licensing on campus in the Washington Post,
- Tim Lee makes the case against software patents in the New York Times, and
- Google brings an antitrust complaint against Microsoft’s desktop search software.
There are several ways to listen to the TLF Podcast. You can press play on the player below to listen right now, or download the MP3 file. You can also subscribe to the podcast by clicking on the button for your preferred service. And do us a favor, Digg this podcast!
Alex Curtis of Public Knowledge sent me the following, which I’m re-posting with his permission:
I was listening to the conversation you were having with Tim Wu on the Tech Policy Weekly podcast. The visual voicemail feature of the iPhone actually doesn’t require anything special on the provider side of things. It’s essentially a VOIP voicemail service, which you can find on their own all over the Internet (Callwave is a good example), formatted with a GUI on a mobile phone.
To me, it speaks to the innovation that can come about when services are built to open standards.
I asked whether this means that messages on the iPhone are stored on Apple’s servers, rather than Verizon’s. He replied:
Over at the Abstract Factory, an excellent proposal for patent reform:
- Software companies that wish to protect their intellectual property register with a new ICANN gTLD, .sft.
- A .sft receives “IP points” every time it produces a “significant” software innovation. For example, every time a .sft publishes a peer-reviewed paper in a major computer science conference, that .sft gets 100 IP points.
- Any .sft may “sue” another .sft at any time, for any reason, for any quantity of money.
- Lawsuits are settled by best-of-7 tournaments of StarCraft. A .sft’s designated StarCraft player (“IP lawyer”) starts each match with a bonus quantity of minerals, Vespene gas, and peons determined by a time-weighted function of a the .sft’s IP points. The victor wins a fraction of their client’s requested damages determined by the ratio of their buildings razed, units constructed, etc. vs. their opponents’.
- IP lawyers may play Protoss, Terran, Zerg, or random race, at their discretion.
The merits of this reform are obvious. Much like patent law, StarCraft is governed by a system of arcane rules that are mostly irrelevant to the actual process of writing innovative software. Much like patent law, StarCraft’s rules can only be mastered by a caste of professionals whose expertise is honed over years of practice. Unlike the legal system, however, StarCraft is swift, decisive, objective, and exquisitely balanced for fairness. Any minor loss in the quality of judgment on the margin would be overwhelmed by the reduced transaction costs of the system as a whole.
I like it. If you’re not convinced, he’s got an excellent FAQ addressing the most common objections.
One other point about the purported “lack of evidence” that software patents harm innovation. I’m probably more sensitive to this type of argument than most because I’m also working on a paper on eminent domain abuse, and you sometimes see precisely the same style of argument in that context. People will argue “sure, eminent domain sometimes screws over individual landowners, but there’s no evidence that it harms the economy as a whole.”
There are two problems with this sort of argument. First, as I said before, it’s not obvious what “empirical evidence” would look like. Eminent domain abuse occurs in almost every state in the union, and it would be extremely hard to set up a good controlled experiment.
But the more fundamental point is that individual examples of injustice are themselves evidence that something is wrong. When city governments steal peoples’ land to make room for a shopping center, that is, in and of itself, evidence that eminent domain abuse is harmful. If we can pile up enough examples of such abuse, that’s evidence that the system is causing harm even if the harm doesn’t show up in national GDP statistics.
Similarly, I don’t think anyone would seriously claim that what happened to RIM, or what’s happening to Vonage, is just. So those are two data points in support of the thesis that the software patent system is screwed up. Here are 26 more. When you’re talking about issues like this that aren’t susceptible to clear-cut quantitative measurements, the plural of anecdote really is data—especially when the anecdotes are so lopsidedly in one direction.
Here are my thoughts on Solveig’s comments:
The focus on software patents in the oped is, however, rather misleading; the problems of the patent system are broader than that, affecting tech in general and not software in particular. Furthermore, these problems are not inherent in any patent system, but are peculiar to our system, because of problems with the way it is administered. Note that in Lee’s 1991 quote from Gates, Gates is concerned not that software patents are inherently bad, but that the way they have been implemented has not worked out.
It’s certainly true that the problems with the patent system extend beyond software patents. But I don’t think this is a fair reading of Gates’s memo. Later in the same paragraph I cited in my article, he wrote:
A recent paper from the League for Programming Freedom
(available from the Legal department) explains some problems with the
way patents are applied to software.
He was almost certainly referring to this paper, published about 3 months earlier. The first paragraph of that paper is:
I thank Solveig and Greg for their thoughtful comments on my software patents op-ed. A few quick responses. First, from Greg:
based on journal literature, industry gross sales, published books, and more consumer crap to fill garbage dumps with, there is ZERO evidence that technology is being stifled…
I have trouble putting much stock into studies that try to find a statistical correlation between software patents and innovation. It’s extremely difficult to come up with good metric for the innovativeness of an industry given that, by definition, innovation happens when you do something people don’t expect. Moreover, it’s not clear to me what the appropriate baseline should be in these studies. Even if you came up with an objective measure of how innovative the software industry is at any given time, I don’t know how you’d figure out what the relevant counterfactual is. You might be able to learn something via cross-country comparisons, but even these comparisons are pretty dubious given the globalized nature of the software industry.
But while macro-level statistics aren’t very illuminating, I think the anecdotal evidence is overwhelming. I think Greg’s rejoinder here kind of proves my point:
I can’t work up much sympathy for the defendant in this particular case, but the continued abuse of the patent system is still worrying. Mike has the goods:
A patent holding company named Geomas has the rights to a broad and obvious patent on location-based search that just about every local search or online yellow pages site probably violates. The company has apparently raised $20 million from some of the growing list of investment firms drooling over the innovation-killing patent-hoarding lawsuit rewards and is kicking things off by suing Verizon for daring to put its phone book online in the form of Superpages.com. This is the type of patent that should be tossed out following the Supreme Court’s Teleflex ruling, but for now it’s wasting plenty of time and money in everyone’s favorite courthouse for patent hoarding lawsuits in Marshall, Texas. While the article notes that it may have been “new” to think about creating location-based search when the patent was filed, that doesn’t account for whether or not it was an obvious next-step. Does anyone actually believe that without this patent Verizon wouldn’t have thought to put its yellow pages solution online or that Google wouldn’t think of creating a local search tool? That seems difficult to believe.
Deven Desai wonders if copyrights might be just as harmful to innovation in the software industry as patents:
It seems to me that copyright with its rather long term and (as Mr. Lee acknowledges) the ease with which one can obtain copyright protection could have as much if not more detrimental effect than the software patents to which he is opposed. I would offer Dan Burk and Mark Lemley’s Designing Optimal Software Patents which argues “Optimal software patent doctrine would constrain scope to deal with patent thicket while lowering the non-obviousness standard to validate more issued software patents” as a place to begin investigating this question but also welcome input about this debate.
I’ve actually read the Burk/Lemley paper and have been meaning to write about it for some time. But I don’t have time to dig into that now, so let me instead just quote an excellent response from Michael Chermside:
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.
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