Regular readers might recall my software patent of the week for September 2, which covers the concept of controlling music playback on a computer screen. Now, via TechDirt, comes news that the lawyers responsible for that shakedown has put out a press release bragging about his accomplishment. And it really illustrates what’s wrong with our patent system:
Starkweather wrote the patent in 1996 for David Contois of Contois Music Technology. The concept consisted of a desktop computer holding multiple songs with an interface allowing a user to select three songs and play them on an electric grand piano. Starkweather saw the broader value and broke the patent into three elements: remote music storage, selection of music to download, and playing music on a music device.
Starkweather realised that downloading movies was an obvious variation to downloading music. It was data manipulated in the same way. “Sometimes it’s easy to break an invention down to its key components,” Starkweather says. “That’s why patent writing is an art, not a science, and requires creativity.”
There are a couple of interesting lessons from this. First, it’s obvious that this patent did nothing to advance the progress of science and the useful arts. The inventor had already created his invention when Starkweather came along, and had no expectation of getting a patent for it.
Second, this should make it clear that patents
do create incentives for creativity. It’s just not the kind of creativity that the patent system is supposed to encourage. The real innovator here was Starkweather, who managed to get a patent that’s much broader than was merited by the actual invention, not Contois. Economists call this kind of creativity “rent seeking”–gaming the political system to extract wealth from others. Starkweather is in the same category as lobbyists and ambulence-chasing trial lawyers.
Neat! The Wall Street Journal appears to have cited my DMCA paper in today’s editorial. (It’s behind a paywall, unfortunately) Unfortunately, although I always appreciate seeing my work cited, it doesn’t look like they read read it very carefully:
A recent Cato Institute paper argues that “transformative” technologies like search engines should be exempt from many of these copyright lawsuits because they create entirely new products out of the old. They argue that the role of “copyright law is to promote, not impede technological progress.” That’s true. But without rigorous enforcement of intellectual-property rights, there may not be much technological progress to promote.
This wasn’t really the point of my paper, nor is it just my opinion. Rather, I was quoting the decisions of the Supreme Court, which ruled in 1994 that “transformative” uses of copyrighted works tend to be fair, and the Ninth Circuit, which ruled that thumbnails used in image search engines are such a transformative use. And I wasn’t talking about the YouTube or Google Book Search controversies, which involve different issues than the reverse-engineering cases I was focusing on in my paper.
As I’ll explain below the fold, the rest of the editorial makes the same kinds of mistakes.
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Every week, I look at a software patent that’s been in the news. You can see previous installments in the series here. This week, I consider Patent #6,988,138, “Internet-based education support system and methods,” issued in January to Blackboard Inc. According to CNet, the Software Freedom Law Center is challenging the patent’s validity. And it’s a good thing somebody is. Here’s what the patent purports to cover:
A course-based system for providing to an educational community of users access to a plurality of online courses, comprising: a) a plurality of user computers, with each user computer being associated with a user of the system and with each user being capable of having predefined characteristics indicative of multiple predetermined roles in the system, each role providing a level of access to a plurality of data files associated with a particular course and a level of control over the data files associated with the course with the multiple predetermined user roles comprising at least two user’s predetermined roles selected from the group consisting of a student role in one or more course associated with a student user, an instructor role in one or more courses associated with an instructor user and an administrator role associated with an administrator user…
And it goes on in that vein. In a nutshell, they’re trying to patent the concept of distributing course information (assignments, announcements, class discussions, grades, etc) via the web with different access permissions for different users.
With most of the patents I’ve analyzed in this series, I’ve had to make my best guess about whether someone of ordinary programming skill could have developed the type of software described in the patent. But I don’t have to make any guesses in this case, because I’ve personally worked on software that does most of the things this patent describes.
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Joe at Techdirt makes an excellent point about government and monopolies:
Here’s a story that hits on some of today’s themes of monopolistic behavior and keeping stuff off the internet. The Department of Justice has been given the go ahead to proceed with a lawsuit against the National Association of Realtors, alleging that the group colluded to prevent listings from appearing online, in a bid to give established brokers an advantage. Now, we’d be tempted to say that however backwards the organization’s thinking is, they have the right to distribute their data to whomever they want. But we should take a step back and ask why the NAR is in the position to monopolize this information in the first place. That fault rests with the government, which has put the NAR in charge of regulating its industry, and deciding who can and can’t be a broker. In other words, its monopoly has official legal blessing. Without this, anyone could go out and get listings, and abide by whatever rules they wanted to, offerings to broker home sales as efficiently as possible. So instead of suing the NAR, for doing what it’s intended to do (maximize profits for its members) why not get at the root of the problem and take away its monopoly status?
Quite so. We just published an article by my colleague Sarah Brodsky describing how the realtors’ lobby recently got a euphemistically named “Homeowners’ Bill of Rights” passed in Missouri that limits competition by outlawing discount real estate brokers. If you want to pay someone to list your house but do the rest of the legwork of selling the house yourself, that’s too bad. You have to go with a full-service real estate agent.
The state has a split personality when it comes to monopolies and cartels. Most of the time, our elected officials vigorously denounce them and take action to (supposedly) increase competition. However, if they’re created by the government, that’s a whole other ball game. In that case, only crazy right-wingers would suggest that more competition would be beneficial. And sometimes, the state does both at the same time: creating a cartel with its right hand, while its left hand simultaneously investigates the cartel for being anti-competitive. It’s very strange.
This is odd. Apparently, the CIA has recently decided that access to its entire website will henceforth be encrypted using SSL–the encryption standard used by websites accepting your credit card number.
They say this ensures that no one is able to impersonate the CIA website, but that doesn’t make a whole lot of sense. I can’t imagine why anyone would want to impersonate the CIA’s public website. And if they did, SSL is only an effective deterrent if the user manually examines the site certificate, which doesn’t seem very likely.
The other claimed benefit is to prevent eavesdropping on (or tampering with) peoples’ browsing. But that doesn’t make sense either. An eavesdropper could still see the URLs being visited by a user. And since most of the site is publicly available, static content, encrypting it is kind of pointless. It’s certainly good to encrypt personal information submitted by users, but the site was already doing that before this announcement.
Technologically-challenged institutions have an unfortunate habit of judging security using bulleted lists. Throwing more encryption at something doesn’t make it more secure. You have to think about who your attacker is and what he’s likely to be after before you start looking for solutions. In this case, it’s not clear there’s any attacker at all. As far as I can see, no one is trying to spoof the CIA’s public website or eavesdrop on people visiting it. So adding SSL is a solution in search of a problem.
Mike Masnick notes that Venezuela is ahead of the United States when it comes to adopting voter-verified paper trails for their electronic voting machines. Several commenters objected that given the level of corruption in Venezuela’s government, this doesn’t really mean anything: corrupt government officials can mis-count paper voting records as easily as electronic ones.
I don’t know enough about Venezuelan politics to have a definite opinion on whether the election is likely to be rigged, but the general point is quite true. Voting security ultimately turns on human factors, not technological ones. If the people running your election system are systematically corrupt, your election results are going to be suspect no matter what technological safeguards you put in place. E-voting (with or without a voter-verified paper trail) can’t make dishonest officials follow the rules. It simply obfuscates the voting process, making it less likely that someone will spot foul play should it occur.
A transcript of the KSR v. Teleflex oral argument is available here. It sure sounds like the justices are not happy with the status quo:
MR. GOLDSTEIN: Justice Scalia, I this it would be surprising for this experienced Court and all of the patent bar–remember, every single major patent bar association in the country has filed on our side –
CHIEF JUSTICE ROBERTS: Well, which way does that cut? That just indicates that this is profitable for the patent bar.
(Laughter.)
MR. GOLDSTEIN: Mr. Chief Justice, it turns out that actually is not accurate.
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Doug Lay points out this summary of today’s oral arguments in the KSR v. Teleflex case. ZDNet’s Anne Broache has another good summary. It sounds like the argument went well for the forces of sanity:
During hour-long oral arguments in a case that’s closely watched by the business community, Chief Justice John Roberts suggested that an existing federal court test for determining patent obviousness relied too little on common sense. Justice Antonin Scalia went so far as to call the test “gobbledygook” and “meaningless.”
“It’s worse than meaningless because it complicates the question rather than focusing on the statute,” Roberts went on to say of the test, which requires evidence of a past “teaching, suggestion or motivation” that would lead to a particular invention in order for it to be declared “obvious.”
My co-blogger Solveig Singleton (along with Jim Delong) filed an excellent amicus brief in the case for PFF.
Ed Felten has a clever post on the strange intersection of Second Life and copyright law:
Alice designs a spiffy new hot air balloon that everyone covets. Bob uses CopyBot to make his own replica of the balloon, which he starts riding around the skies. Alice discovers this and sends a takedown notice to Second Life. Bob’s balloon is then “taken down”–it disappears from the world, as in the classic cartoon Duck Amuck, where the animator’s eraser plays havoc with Daffy Duck’s world.
But surely Bob isn’t the only one riding in a copied balloon. Others may have CopyBotted their own balloons or bought a balloon copy from Bob. It’s tedious for Alice to write and send a takedown notice every time she sees a copied balloon.
What Alice needs is a takedown gun. When she sees an infringing balloon, she just points the takedown gun at it and pulls the trigger. The takedown gun does the rest, gathering the necessary information and sending a takedown notice, dooming the targeted balloon to eventual destruction. It’s perfectly feasible to create a takedown gun, thanks to Second Life’s rich tools for object creation. It’s a gun that shoots law rather than bullets.
Felten goes on to explore the ramifications of the development of such a gun. He concludes that “when copying is easy, laws against copying are very hard to enforce.”
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Techdirt notes that the Supreme Court has turned down Microsoft’s appeal of their loss to Guatemalan inventor Carlos Armando Amado. And they were kind enough to link to my write-up of the Amado patent. As I said back in June:
So it seems that Mr. Amado’s “invention” consisted in taking a bunch of features from several other database products and combining them into a single user-friendly package. This is somewhat akin to a car company patenting the idea of a car that has anti-lock brakes, an onboard navigation system, and remote keyless entry. The patent could have glossy color pictures of the vehicle and describe in great detail how seamlessly the features work together, but it still wouldn’t be an invention worthy of patent protection. Combining several previously-known features into one product isn’t innovative, even if the new product allows you to do things the old one didn’t.
I suspect that this is a rare case where the only realistic chance of reform is for Congress to get involved. The Supreme Court has too much on its plate (and is likely too wedded to
stare decisis) to untangle the mess the Federal Circuit has made of the patent system.
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