Today, the Well Connected Project of the Center for Public Integrity is excited to launch an issue portal jointly with Congresspedia. This issue portal is a wiki, like Wikipedia, creating a collection of articles on telecom, media and technology policy, in a single location. Anyone can read, write and edit these articles.
This issue portal builds on the great telecom and technology reporting done by the members of the Well Connected Project staff. This venture into collaborative journalism is a first for our project. It adds a new element to our investigative journalism endeavor. First of all, we have the Media Tracker, a free database of more than five million records that tells you who owns the media where you live by typing in you ZIP code. If we win our lawsuit against the FCC, we’ll also include company-specific broadband information in the Media Tracker.
Second, our blog features dozens of quick-turnaround stories on the hottest topics in telecom and media policy. Recent stories have broken news on the battle over 700 Megahertz, on the lobbying over the proposed XM-Sirius satellite radio merger, and also over copyright controls on electronic devices. We also do investigative reports – like this one about Sam Zell, the new owner of Tribune Co. – that build on the data that is freely available in Media Tracker.
Now, with the addition of this Congresspedia wiki, our project aims to incorporate citizen-journalism on key public policy issues near and dear to the blogosphere. These are issues like Broadband availability, Digital copyright, Digital television, Regulating media content, and Spectrum are at the core of what techies care about in Washington. We hope you will add others articles, too. In fact, I’ve already started my own wish list: articles about Patent overhaul legislation, Media ownership, the Universal Service Fund, and Video franchising. Our reporters can summarize these issues and debates, but so can you.
Take a crack at them!
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Don Marti, a writer for LinuxWorld, describes “the other side” of the software patent debate:
To the “think tank” types [on the Technology Liberation Front], lawyers are basically free and software innovation is hard to get. Most of the think tanks are in Washington, DC, where you can’t swing a cat without hitting a bunch of lawyers. To a think tank staffer, it’s just as obvious that you’d get a lawyer to patent your software idea as that you’d back up your files. Lawyers are background noise, and software innovation is something that you see on the cover of Wired and wonder “how did they do that?” (If there’s a breeze on Technology Liberation Front, it’s all the pro-software-patent posters hand-waving the transaction costs.)
To the people opposed to software patents, lawyers are expensive, and software innovation is abundant. As a working programmer with a white board, software innovation comes to you faster than you could actually get the software working, so software innovation might as well be free. The limiting factor in producing software value is debugging, testing and integration time, not patentable ideas.
In the real world, transaction costs around software patents—mainly the price of lawyers—matter way more than the think tankers are able to see, what with taking swarms of lawyers for granted. And software innovation, to most people, isn’t just a nusiance that leaves you with a stack of notes and half-baked programs, it’s actually rare.
Is this a fair criticism? One of the things I like about TLF is that we have a non-trivial number of both lawyers and geeks in our audience, so there’s some opportunity for these “two cultures” to become better acquainted with one another’s perspectives.
Over at Ars, Ryan Paul has a great article that analyzes Microsoft’s contention that free software firms are refusing to facilitate interoperability with Microsoft’s products:
Echoing similar statements already made by Mandriva CEO Francois Bancilhon and Ubuntu founder Mark Shuttleworth, Paul Cormier, Red Hat’s executive vice president of engineering, tells eWeek that his company is still very eager to pursue interoperability collaboration and “solve real customer problems without attaching any unrelated strings, such as intellectual property.”
Microsoft’s senior vice president for server and tools, Bob Muglia, denies that intellectual property issues are unrelated to interoperability. Although Muglia concedes that there are still ways to achieve interoperability without indemnification agreements, he thinks that Linux distributors “haven’t actually solved the customer’s interoperability problem unless [they] have also solved the licensing issue.”
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A centerpiece of the Leahy-Hatch/Berman-Smith Patent Reform Act of 2007 (S. 1145 and H.R. 1908) is the establishment of an injudicious post-grant opposition procedure (also known as a “second window”). According to Chairman Howard L. Berman (D-CA) of the House Subcommittee on Courts, the Internet, and Intellectual Property, a new layer of review is needed because:
In an effort to address the questionable quality of patents issued by the USPTO, the bill establishes a check on the quality of a patent immediately after it is granted or in circumstances where a party can establish significant economic harm resulting from assertion of the patent. [emphasis added.]
There are several key problems with the proposed new procedure for post-grant review contained in sec. 6 of the Patent Reform Act of 2007.
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According to Senate Judiciary Chairman Patrick Leahy (D-VT), constructive patent reform would “reduce the unnecessary burdens of litigation” in the patent system and “enhance the quality of patents” granted by the Patent and Trademark Office. Better patent quality ought to be the focus of discussion, because only bad patents lead to unnecessary litigation. Most people would agree courts ought to vigorously enforce good patents. The Leahy-Hatch/Berman-Smith Patent Reform Act of 2007 (S. 1145 and H.R. 1908) fails to reflect this basic point. The bills misguidedly treat the goals of improving patent quality and reducing litigation as mutually exclusive goals to some extent. The result will be to reduce protection for all patents, not just the bad ones.
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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:
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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:
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TLF co-blogger Tim Lee had an oped in the New York Times on software patents; Greg Aharonian offers his usual pointed response. Am thinking of inviting them both to lunch.
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