A work in Progress
It becomes more and more apparent each year that the historical frameworks governing copyrights and patents in this country (if not the world) has become strained under advances in modern technology, and particularly, the internet. The digital millennium has changed the face of content creation, distribution, and consumption to such a degree that legislation governing copyright, infringement, and plagiarism can scarcely keep up.
One of the principal tools in use today in the United States is the Digital Millennium Copyright Act (DMCA), passed into law in October of 1998. We are all at least somewhat familiar with the Digital Millennium Copyright Act. At least, we know it has to do with “protecting” copyrighted works online, and that it allows online content to be “removed with” the simple issuance of a “takedown” notice by the party alleging infringement, usually to the hosting entity.
In broad strokes, the DCMA requires that, upon receipt of an infringement notice, the Internet Service provider or hosting site must block or remove public access to the alleged infringing material in order to be protected from liability under “safe harbor” rules built into the DMCA. In the meantime, the content host generally notifies the user or customer who posted the content, who is then free to file a counter-notice establishing that the content does not, in fact, infringe as claimed.
The above description is intentionally broad and vague, because I am not an expert in copyright or the DMCA. In addition, more detailed information abounds online. You can start HERE if you want more information. In short, the DMCA was a step forward in that it established explicit measures protecting internet service providers and content hosting sites from being held liable for infringing content uploaded by users.
Big Media, for the Takedown
I am proposing that the DMCA has potential to be a reasonable compromise in terms of bringing copyright enforcement kicking and screaming into the modern age (ok, at least to the eighties or nineties). The problem at present is that, like many things, the current implementation is one-sided in the extreme, unduly favoring the plaintiff, which is most often a heavily-lawyered, well-healed large corporation. Essentially, all one need do to get somebody’s content blocked, even temporarily, is issue the takedown notice. It then becomes the problem of the content publisher to demonstrate that the posted content does not, in fact, infringe upon the plaintiff’s work.
Certain major media companies have taken to issuing indiscriminant take down notices, apparently using internet search algorithms and “web crawling” technology to identify potentially infringing content. In some cases, it appears that content is targeted based upon keywords, titles, or other criteria which may well identify infringing works, but also a good many other sites which are not in fact plagiarizing or pirating the work of others. Often acting through surrogates, big media companies seem to favor a shoot first, ask questions later approach, issuing the take down notices indiscriminately. The current law provides no penalty for this, and the result is that, if YOUR content happens to contain the right combination of keywords, your content might be yanked, pending resolution through a counter notice.
Balancing the Equation – a Common-Sense Solution
I propose that the DMCA be modified to penalize those who issue a takedown notice which turns out to be invalid. If someone is going to claim MY content infringes upon their previously published work, they should be damn sure that it does if they are going to step on my livelihood. Just as in civil court, if I sue you, and I lose, I will be required to pay your attorney’s fees and other legal costs. Under the modification I propose, at the very least, those who are found to have issued a bogus or insufficiently researched takedown notice should have to pay for my costs to get my content restored, plus any lost revenue arising from the period during which my content was off line. Other penalties should also be levied, since at present, there seems to be no mechanism to regulate the profligate issuance of these takedown notices in a slash-and-burn manner by big media companies.
I am very much against plagiarism and piracy. I think that those who seek to profit by illegally distributing copyrighted materials, and/or through plagiarism, should be punished accordingly. But I don’t feel that the laws by which this is accomplished are balanced fairly at the moment, and the situation is skewed too far in the direction of the big publishers.
Don’t steal. Don’t plagiarize. And don’t throw out the baby with the bathwater.
We can do better.
John on Google
Revenge of the Nerds
In the last week, there has been a most entertaining (and semi-civil) exchange on Twitter between the public face of the Activist group Anonymous and Dana White, President of the UFC (Ultimate Championship Fighting). The discussion escalated to the point of tough-guy talk from Dana White (Like, uh, what else would you expect from the President of the UFC?) and some interesting game-playing on the part of Anonymous. The "Hactivists" posted a link on twitter to a page containing what appeared to be a swath of White's personal data, including Social Security number, address, and financial data. On Friday, Anonymous attempted to break into the UFC server, and initiated targeted redirects of the UFC.com domain.
"Dana White - what do you have against the Internet? We're just curious, as we were quite surprised at the harsh tone of your comments . . . do you support what we do, in terms of activism & raising public awareness of critical security/privacy issues?"
- @YourAnonNews to Dana White, via Twitter
Mr. White is a supporter of SOPA/PIPA, and feels that internet piracy is no different than stealing. He would know, apparently, because UFC "pay-per-view" fights are often pirated, depriving the UFC of revenue. The hackers of Anonymous contend that SOPA/PIPA amounts to censorship and a deprivation of our basic freedoms. On which point I heartily agree.
"The only thing that we're focused on is piracy. Piracy is stealing. You walk into a store and you steal a (freaking) gold watch, it's the same as stealing a pay-per-view."
- Dana White, Thursday January 26, 2012
Been Caught Stealin'
On the point of piracy I agree with Mr.. White. To a point.
Piracy IS a big issue. Mr. White, and all those whose livelihoods are impacted by piracy are understandably pissed. And, no, it really does not matter that some of them may be really, really rich already (Mr. White is pretty well off). Stealing is still stealing, and it is wrong and illegal.
According to White: "The only thing that we're focused on is piracy. Piracy is stealing. You walk into a store and you steal a (freaking) gold watch, it's the same as stealing a pay-per-view."
And that is true.
The problem with SOPA/PIPA, and the problem with Data White's analogy of stealing from a store, is that you still need to be proven guilty when you are arrested for stealing from a store.
"I love the Internet. It helped us grow our biz. Stealing is stealing! And hacking into people's (expletive) is terrorism . . . I'm a fight promoter. I put on fights. People are stealing my shit on the net and selling it or selling ads on it."
- Dana White to Anonymous, via Twitter
SOPA/PIPA, and any other legislation which allows the government to block or takedown entire IP addresses and remove domains from the DNS system is that, under SOPA and PIPA, due process has been circumvented. SOPA/PIPA would empower the government to block sites "suspected" or "reasonably believed to be" hosting pirated content with minimal due process, and largely at the urging of large media companies and content providers.
Mr. White, I feel your pain. Piracy sucks, and needs to be addressed. However, compromising the basic freedoms of the internet is not the way to do it. The unfortunate truth is that, like any other criminal enterprise, online piracy will continue in spite of any government intervention. Like any other criminal enterprise, we the people must fight within the confines of law and order, while the criminals are not so constrained.
UFC, Hollywood, and the US government already have tools to fight piracy. They are not as effective as some would like, but they exist. Hell, the best SOPA could have done would have been to block Americans from accessing pirated content hosted on foreign servers. It would have had no impact upon foreign access to pirated American content hosted on those same foreign servers.
Increased regulation, especially of the sort offered by SOPA/PIPA would most definitely impact the internet as a whole, however. Now that Mr. White and the rest of Hollywood have begun to realize the profit potential of the internet, they and their cohorts in the Congress are also suddenly interested in seizing as much control of the internet as possible.
As I related in an earlier post, there exists the very real possibility that by the end of the decade, the internet as we know it will no longer exist. After all, the same media companies which brought you the "Big Three" broadcast television networks (ABC, CBS, and NBC), and the same providers who have dominated the cable television industry have now seen the future of content delivery. And that future is the internet.
In the past decade, the internet has exploded with user-generated content. The medium is such that just about anyone has been able to create a blog, or publish a video, or create an online forum, etc. Hosting has been cheap or free, and there are few barriers to entry. We were all just fine without streaming UFC fights and Hollywood movies.
If the government and Hollywood become the heavy players in this space, you can kiss all that goodbye.
I say again - Mr. White, I feel your pain. It sucks to be stolen from, whether you are rich or poor. But let's not destroy the very thing that makes the internet great. If SOPA and PIPA had been passed into law, your pay-per-views would still be stolen. Pirates would still make new release movies available, both on the web, and on DVD. Thieves are very clever, and they don't play by the rules.
112 Channels of Crap for just $79.95 per Month . . . If you act NOW!!
I urge you all to adapt and innovate. As Apple, Netflix, and Amazon have aptly demonstrated, a user-friendly experience at the right price will win the day with handsome profits. And without forcing the customer to buy bloated programming "packages" which include two channels they don't want for every one they do. Or an entire album, at album prices, to get the two songs they want. Oh, and take some of the money you all have been shoveling into the hands of Congress through your lobbyist middle-men, and use it instead to spearhead investigations. Or to work with tech companies to find solutions which work for everyone, instead of just yourselves.
The key to maintaining your enterprise in the internet era is to jump on board, without destroying the very thing which makes the internet what it is. After all, it was a bunch of geeks and hackers who brought it this far. What right have you to claim it as yours, now?
References for this post include:
SOPA and PIPA are only the beginning . . .
We all knew it would happen. Back in the '90s, Big media came late to the internet game. For most if its history, the internet has been (rightfully) held as a free exchange of ideas and information, with very little interference from government, at least in the Democratic West.
Now, in the last decade Big Media has taken notice. With the effective monetization of the web, Corporations have now moved into "our" space. The impact can be felt in the form of new regulations proposed, on a regular basis, with the aim of restricting the freedoms of the average internet user in a manner which benefits Big Media.
Prior to the evolution of profitable business models for on-line commerce, the big boys really had little interest in "our" space, and the profiteers in the US Senate and the House of Congress were less than interested in the internet. In the last ten years, however, that has begun to change, and in the last two, things have reached a critical mass. While big business was slow to catch on for the first decade of the internet, the sleeping giant is stirring . . .
Like turning an oil tanker
There is a familiar pattern to this. Each time a technology shift occurs in the content delivery space, large publishers and media companies cry about the threat of piracy, and that the sky is falling. Remember how Home Taping was going to kill music ("and it's illegal")?
How about when recordable CD's became publicly available? This was going to end the music industry.
With the advent of the internet, the game changed on media publishers, first and most visibly for the music industry. Napster made possible the ability to share your music collection far and wide. More importantly, you didn't have to buy an entire album to get the one song you wanted by an artist. While the wide-scale distribution of content-for-nothing via Napster and it's subsequent imitators in reality did represent copyright infringement and piracy, it also demonstrated a new business model for the internet era. Unfortunately, the record companies' and publisher's reaction was not to recognize which way the wind was blowing and adapt. Instead, they resorted to tried and true tactics (not really) of "lawyering up", using lawsuits, threats of lawsuits, and scare tactics in an attempt to restore the status quo. Instead of seizing the moment, instead of becoming early adopters and profiting handsomely, the Recording Industry Association of America (RIAA) reacted in a protectionist fashion, to its own detriment.
Come bite the Apple . . .
As it turned out, Apple recognized the potential of the new business model, and dragged the music industry kicking and screaming into the internet content delivery market. iTunes demonstrated that the majority will pay for legal downloadable content, provided an adequate, user-friendly mechanism to do so. Millions of paid downloads later, both Apple and subsequently Amazon have demonstrated that on-line delivery of paid-for digital music is not only viable, but highly profitable.
By the end of the first decade in the new millennium, delivery of high-definition streaming video has become not just a reality, but a fact of life. From humble beginnings in 2001, Netflix has amassed nearly 25 million subscribers, with an average growth of 2.4 million new subscribers per quarter through most of 2010 and 2011. While the company has since lost subscribers due to a series of marketing blunders, the demand for streaming video content delivery, and the willingness of the masses to pay for it are clear. At 25 million subscribers, Netflix currently has more subscribers than any single cable service provider including Comcast.
Think the internet is going to be the place where your video content comes from over the next decade?
Print media is lagging behind audio and video in achieving a profitable digital presence. But the decline in readership of "old-fashioned" paper magazines and newspapers, combined with the rise of digital readers such as the Kindle, Nook, and of course, the iPad show which way the wind is blowing here as well. In May of 2009, eMarketer reported that "nearly 20 million eReaders were expected to be in consumer hands" by the end of 2011, and that 12% of adults will have an eReader of some type or another. And of course, who can forget that on December 26th 2009, Amazon announced that for the first time, sales of Kindle books exceeded that of physical books.
Bring on the clowns . . .
Now, as the U.S. Congress attempts to pass some extraordinarily bad legislation in the form of SOPA ("Stop Online Piracy Act") and the US Senate does the same with PIPA ("ProtectIP" Act), we stand at a precipice. For the first time, American legislators are actively considering passing into law an Act or Acts which will radically change the internet as we know it forever. Either of these proposed pieces of legislation represent the first step in a process by which Corporate America will attempt to seize control of the internet in much the same way it did the radio broadcast market, and subsequently, the broadcast television spectrum.
As things sit right now, at 10:42 PM Central Time, a day of "protest" by major internet sites such as Wikipedia, Reddit, and others appears to have rattled the cage of our fearless leaders in D.C. Support for SOPA and PIPA has been evaporating throughout the day.
Don't worry. They'll be back.
Plus ça change, plus c'est la même chose (The more things change, the more they stay the same) . . .
With billions of dollars on the line, and the evaporation of historical distribution mechanisms for print, music, and visual media, the large powerhouses of the entertainment industry are not going to sit idly by while the free-as-in-beer internet replaces the money machine. SOPA and PIPA are likely only the opening salvos in a war by which the media companies do their ham-fisted worst to seize control of the internet, to the exclusion of the layman.
Can you imagine a day in which you might need to apply for a license to host a website? Or a day in which the dominance of a small group of mega-corporations on the web infrastructure is so great that there are no avenues for entry at the ground level?
Media markets for sale - contact your state representative for more information!
This may seem like paranoid thinking, when we examine the web as it is today. But take a look back. The internet is rapidly supplanting a multitude of industries which remain, to varying degrees, entrenched in an antiquated business model predicated on dominance through regulation. Television. Telecom. Audio recording, publishing and copyright. Print media. The players in these industries are not going to go quietly into the night. Instead they will, in the coming years, bring the full war chest to the table, starting with our elected officials (you know, the path of least resistance, right?).
It is our hope that the White House and the Congress will call on those who intend to stage this “blackout” to stop the hyperbole and PR stunts and engage in meaningful efforts to combat piracy.”
- (Former) Senator Chris Dodd, CEO of the Motion Picture Association of America, in response to planned protest of SOPA/PIPA
Imagine that! A former US Senator, now heading one of the largest lobbying groups in the country, is accusing the tech industry of engaging in "PR stunts" and hyperbole. I can only chuckle at the irony.
The thinking of big industry, and its attitude towards the rest of the internet community, could not be more effectively demonstrated than by this release (former) Senator Dodd from January 17th, the day before the "blackouts":
Chris Dodd Statement on "Blackout Day Protests"
If the connected community that is the world-wide-web does not succeed in preventing government encroachment and regulation, we face the very real threat of an internet which more closely resembles the "big three" of radio and television networks than the free information super-highway envisioned by its creators. SOPA and PIPA are bad, and they will likely die in the chambers of the Congress and the Senate. But SOPA and PIPA are only the beginning.
Congressional Support for SOPA/PIPA - A chart by Pro Publica showing who supports and opposes the measures. Interestingly, in the wake of today's (January 18th, 2012) internet "blackout" by a number of major internet sites (including Wikipedia), the balance on this chart has tipped dramatically since last night as legislators flee a "sinking ship".
SOPA is a red herring by Adam Curry - Interesting commentary makes the case that SOPA and PIPA are small-potatoes compared to changes being made to the Domain Naming system itself, and that the privacy aspect of the internet will be compromised forever.
Senate Copyright Bill Loses Key Supporters - Forbes Magazine, following the rush of former supporters (and several original co-sponsors) of the SOPA/PIPA legislation as they backpedal in an early election-season rush to please voters.
This isn't tech-talk!
I know, but I couldn't resist. Normally I would avoid politics in the blog space. But this is an issue which transcends right vs. left, Democrat vs. Republican, and the partisan bullshit we find permeating the media today. American citizens should be afraid. Very afraid. Not for their own sake, as I suspect most Americans are not, in fact, aiding and abetting terrorists. Instead, we should be concerned as a nation with the erosion of our most basic constitutional protections.
A Schutzstaffel for modern America
You are awakened at 2:00 AM by the sound of your door caving under a battering ram, wielded by black-clad government agents. You are subdued, pinned to the floor, placed in restraints, carted off to an undisclosed location and locked up. You are not informed as to the reasons for all this, your not charged with a crime, and you are not afforded access to an attorney. You are not scheduled for trial, but instead are held for months on end.
You may or may not be "interrogated." Your family, employer, and friends have no idea what has happened to you, or when, if ever, you shall return.
Oh, the drama
Ok, so that was a bit dramatic. The Schutzstaffel, commonly known as the SS in Nazi Germany, represents an extreme example of what can happen when the police powers afforded The State are not constrained by sufficient legal controls. But we may be sliding down a slippery slope in that direction right here in the good ole' USA with the passage of the National Defense Authorization Act of 2012 . A large number of Senate Republicans, joined by a small number of Democrats recently voted against an amendment to the Act which would have explicitly affirmed that American citizens are constitutionally protected against indefinite detention at the order of the president.
"What we are talking about here is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever"
- US Senator Dianne Feinstein(D-California)
Instead, the bill was passed with much weaker language essentially confirming the current state of affairs, under which the government attempts to claim some murky authority to arrest and detain American Citizens without due process, under the guise of the "war" on terror.
In debate on the issue, Senator Dianne Feinstein(D-California) argued in support of the amendment: "We as a Congress are being asked, for the first time certainly since I have been in this body, to affirmatively authorize that an American citizen can be picked up and held indefinitely without being charged or tried. That is a very big deal, because in 1971 we passed a law that said you cannot do this. This was after the internment of Japanese-American citizens in World War II .What we are talking about here is the right of our government, as specifically authorized in a law by Congress, to say that a citizen of the United States can be arrested and essentially held without trial forever."
"In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis . . ."
-US Senator Lindsay Graham (R-South Carolina)
Arguing against representative Feinstein, Republican Senator Lindsay Graham (R-South Carolina) contends that "In World War II it was perfectly proper to hold an American citizen as an enemy combatant who helped the Nazis. But we believe, somehow, in 2011, that is no longer fair. That would be wrong. My God, what are we doing in 2011? Do you not think al-Qaeda is trying to recruit people here at home? Is the homeland the battlefield? You better believe it is the battlefield."
Uh, Ok Senator Graham. During World War II it was also perfectly acceptable to segregate American troops on the basis of race. It was also perfectly acceptable to detain "for the duration of the conflict" American citizens of Japanese extraction simply for being, well, of Japanese extraction. In other words, on the basis of national origin. Notice that in Senator Graham's argument, he avoids mentioning this particular (and most infamous) implementation of citizen-detention-as-combatant.
I would argue that the US Constitution already provides the protections which Feinstein and other supporters of the amendment to the Defense Authorization Act speak (which does NOT mean that affirming such protection explicitly in the Defense Authorization Act would not be an important step forward).
The Fourth Amendment
"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Fourth Amendment specifically describes "The right of the people . . ." It can be taken as an axiom the "the people" in this instance means the citizenry of the nation, as established in the famous preamble to the Constitution itself:
"We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America."
The Fifth Amendment . . .
"No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger . . . nor be deprived of life, liberty, or property, without due process of law . . . "
There are those who might attempt to argue that the clause which states " . . . except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger . . ." Note, however, that the operative phrase here is "When in actual service".
If this is not enough, the Sixth Amendment to the US Constitution creates an even more explicit case against against detention without due process:
. . . As Enhanced by the Sixth Amendment:
"In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense."
Note in the opening sentence the statement "All criminal prosecutions"
If the government, acting through the intelligence community and/or law enforcement, is unable to produce intelligence and/or evidence of terrorist activity sufficient to affect criminal prosecution under the laws of the land, then they have failed at their task, and should go back and do the job correctly. To paraphrase a famous quote, better that 100 terrorists go free than a single innocent American be unlawfully detained under these draconian measures.
Who are the Combatants, Anyway?
The US Government seems to think it can erode the rights of the citizen by declaring "war" on intangibles. The "War on Drugs". The "War on Terror" Etc. Who are the combatants in these "wars?" The Constitution of our great nation provides a mechanism for dealing with citizens who violate the law of the land, even in cases of Treason. Mere suspicion of terrorist collaboration is not sufficient to warrant the suspension of constitutional rights. While the actions of terrorist organizations are reprehensible (and ineffective at achieving the goals of the organization), when we as a nation allow our government to act in a manner contrary to our beliefs and ideals, and in contravention of the idea of the liberty we espouse as a model to the world, the terrorists can claim victory.
The Integrity of Our Nation
"The United States should not grant victory to the terrorist forces of the world by compromising those values we hold most dear. In doing so we damage the credibility of our nation, of our law, and of our leaders in the eyes of the world."
The United States should not grant victory to the terrorist forces of the world by compromising those values we hold most dear. In doing so we damage the credibility of our nation, of our law, and of our leaders in the eyes of the world. Given the current political circus, and the status of America in the global economy, we don't need any help with that from our "leaders" in the Senate and Congress.
Ideas and information for this post were drawn from the following sources:
An Opinionated Rant About the State of the US patent System
Whether or not you are a software developer, smart phone manufacturer, or purveyor of touch-enabled devices (just to name a few), you have no doubt heard the back and forth within the technology sector about patent infringement. Further, you are most likely aware of the "sweeping reforms", otherwise known as the America Invents Act, passed into law by the US government in September. Chief among the "reforms" of the patent system in the US is a game-changing shift from a "first-to-invent" policy to one based on "first-to-file" when it comes to establishing ownership of an invention (which includes intellectual property, such as software and ideas).
What's a patent, and why do I care?
From the American Heritage Dictionary:
- The exclusive right granted by a government to an inventor to manufacture, use, or sell an invention for a certain number of years;
- an invention or process protected by this right.
- an official document conferring such a right.
In the simplest sense, a patent protects the right of an inventor to realize the fruits of his or her efforts, while also providing an incentive for investment in innovation. In the United States, the concept of the patent is established in Article I Section 8 of the US Constitution, empowering the Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries"
Note the actual intent of this statement. The purpose of the patent system is the promotion of progress/innovation. The protections afforded inventors are the means by which this progress is achieved.
My first bitch: The game is rigged
Under prevailing US patent law, the patent holder can claim infringement at any time during the term of the patent. Further, it is the obligation of the "other inventor" to ascertain that an idea, invention, or intellectual property does not infringe upon the patent of another party. While patents are made public once granted by the US patent office, the sheer number of patents to be searched is staggering. Moreover, patent searches (and the additional legal legwork required to determine the risk of a new invention infringing upon an existing patent) is expensive and complex. Frightfully so.
Large corporations have armies of lawyers (who often have degrees in engineering in addition to their law degree) to handle the patent process. Even then, most of the time the best that can be hoped for is that this army of lawyer/engineers are able to determine that there is an "acceptable risk" that a product will not be infringing upon an existing patent.
Small companies, startups, and independent developers rarely have the resources to perform this type of exhaustive search.
Making matters worse, there were, in 2008, 6.6 patents pending for every patent issued. According to the US Patent and Trademark Office (USPTO), it takes about 22 months to obtain a patent. Given that 22 months is longer than the development cycle for many technology companies, it is possible for Company A to begin independently developing a software or hardware product before patent records related to another entity's patent claim are even available. Company A might incur substantial costs for development of the soon-to-be-patented idea, followed by substantial investment in creating and developing a market. The newly-minter patent-holder is able to wait until Company A achieves significant market success with the new product before filing suit claiming patent infringement.
My Second Bitch: Who approves these things, anyway?
Even worse, recent patent litigation seems to be based upon hopelessly broad and/or common-sense ideas, duly committed to paper at the USPTO, under which nearly any software product might be accused of infringement. It would seem that what one needs in order to secure an enforceable patent at the USPTO is not an original, innovative "invention" but instead the financial and legal wherewithal to create reams of paperwork documenting generic ideas and making them sound original.
As an example, let's examine US Patent # 5,251,294 "Accessing, assembling, and using bodies of information. This patent, filed in 1993 and now part of the Lodsys portfolio, opens with the following abstract:
"An interactive information environment for accessing, controlling, and using information. Using a computer, available sources of information are accessed, and components are extracted, labeled, and formed into discrete units called contexts. A user selects and rearranges context labels and their associated contents. Contexts are selected and combined into new information structures called alternates, which are combinable with contexts into preferred situations. The preferred situations in turn are combinable with the foregoing components into meta-situations. All components have labels; labels and their associated contents are interchangeably movable and copyable at the levels of these information structures, whether they are located locally or remotely, and the information structures are combinable . . ." blah blah blah.
Does this sound like any common data organization models YOU know? Depending upon who you are, you might claim that nearly any spreadsheet program, relational database (and/or its associated GUI), HFS file system, HTML-based web page, or other computer usage of graphical data representations violates this patent.
The recent furor around infringement claims by Lodsys related to "in-app purchasing" find their basis in a similarly nebulous and far-reaching patent, US Patent #7,222,078 "Methods and systems for gathering information from units of a commodity" . . .
This patent opens with THIS abstract:
In an exemplary system, information is received at a central location from different units of a commodity. The information is generated from two-way local interactions between users of the different units of the commodity and a user interface in the different units of the commodity. The interactions elicit from respective users their perceptions of the commodity.
Wow. This could ALSO cover most software ever written.
In both cases, the "inventions" are the product of Mr. Dan Abelow, who seems to sit around creating drawings and narratives of hopelessly broad technology concepts and then patenting them. Lodsys, which is in reality a holding company for Mr. Abelow's patents, seems to exists for the primary purpose of "enforcing" those patents once some company achieves profitability from a technology implementation which might be said to utilize them.
Under this patent system, it seems like one might make a lucrative career out of dreaming up documentation for common uses of existing (and more importantly, existing but not-yet-fully-realized) technology, and filing your "inventions" with the USPTO. Then, just sit around and wait for someone ELSE to make the investment in bringing your "idea" to fruition. The, SUE!
How do Lodsys, Mr. Abelow, and other patent "trolls" pull this off? Why would large companies enter into licensing agreements for such nebulous patents? Because it is less costly to do so than to litigate in court. Also because most of these large companies have their OWN portfolios of patents, mostly (but not always) held as a defensive measure against just this sort of litigation.
Unlike the Patent "troll" large companies hold their patent portfolios for a number of reasons:
- To protect legitimate innovation and to recover the costs of R & D, product development, etc. related to brining an innovation to market
- To hedge against litigation as mentioned previously.
- To use against competitors in restraint of competition.
Of these three, it is this last which is the most troubling to me. Say what you want about the Big Evil Corporation (BEC). If BEC creates an innovative technology, the patent concept is properly used in protecting the investment in developing the product, and incentivizing such innovation. But when said BEC attempts to use broad and what I will call "shady" infringement accusations as a means of restraining competition, I feel we enter a different realm. This is the mark of a company which cannot compete on the merits of its product, and which seeks instead to either reap profit or avoid competing by forcing its competitor to license dubious patent rights instead.
Is THIS what the Patent System is for?
I am certain this is NOT what our founding fathers intended when they empowered the Congress to "Promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
What do you think?
Some interesting resources on this topic: