Just before summer recess, some prominents senators have revived patent reform legislation (more or less) that had been proposed in the House last year. It’s interesting to witness the politics between the Professional Inventors Alliance (which dislikes these proposals) and the Big TechCos (which are full-bore behind it, it appears).
Lawrence Lessig is giving a rousing lecture right now to a standing-room-only crowd in Ames Courtroom at Harvard Law School. It’s a plenary session of Wikimania 2006. He is in his element. It’s amazing to feel the energy in this room — unconveyable by blog or any other Internet-borne medium, but very very real.
Interoperability, he’s saying, is the key to the story — the Free Culture story — of which Wikipedia is such an illustrative chapter. The instinct to control a platform that you give (or sell) to other people is understandable, but it is also stupid. There needs to be interoperability and free standards that provide the widest range of freedoms for human beings to build upon the platform (sounds a lot like JZ’s Generativity).
We need to remember this lesson as we build a free culture. But we also need to make it possible for this platform to enable people to participate in a free culture. We need also to support the work of the Free Sofware Foundation and work toward free CODECs to allow content to flow across various platforms.
But we need to move past the technical layer, and enable a platform at the legal layer, too, one that protects free culture. The CC movement is an important piece of the story.
Yochai Benkler’s extraordinary book oozes with praise for Wikimedia. You are the central element, the central example, of Yochai’s wonderful argument. It is out of praise for all Wikimaniacs that Larry got on a plane at midnight, he says.
He’s also got a plea for everyone at Wikimania 2006: enable free culture, generally. There are two ways, he says, to do that:
1) Help others to spread the practice with your extraordinary example. There’s a CC/Wikimedia project — PDWiki — to help do this. It will put works in the hands of Canadians in digital form. Beyond demonstrating what you can do with works, it will help to establish what’s in the public domain and what’s not.
2) Demand a user platform for freedom. It came from a conversation with Jimbo Wales; they were drinking awful coffee in Europe. The problem was a lack of interoperability among islands of free cultures. We need interoperability among licenses that are allowing you to do the same thing with the content. We need to support an ecology of different efforts seeking to achieve the same functional outcomes — just as the original web was architected, only this time for cultural works, for content, not for code.
The way it work work is not that CC would have control, but rather that Eben Moglen’s Software Freedom Law Center would be in charge of running the federation of free licenses. The outcome should be that you can say: Derivatives of works under this license can be used under other equivalent licenses.
If we do not solve this problem now, we will face an ecological problem. These islands of free culture will never become anything but silos. We could do good here; we should do good here. Keep practicing the same kind of Wikimaniacal citizenship, he urges, that you’ve practiced to date, and get others to join you.
[Loads of applause.]
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Elsewhere: CNet picks up the event itself as well as a wiki-photo-stream. Artsy, and nice. And Martin LaMonica has covered Lessig’s talk.
Dan Bricklin, David Isenberg, David Weinberger, Dave Winer, Doc Searls, Mitch Kapor, Wendy Seltzer, Yochai Benkler, many other great people are in the room. An old-home week for Berkman Center.
And what a happy picture this is, taken by Dave (he also has a movie of it): a group posing on the steps of the Old Berkman Center (we’ve just moved across campus).
I should start off by saying that I am not a fan of the patent system as a means of establishing IP rights in software. My critique of the system is (at least) five-fold: 1) there is widespread evidence that the system of granting claims in the United States, at least, is deeply flawed (see the scholarship of Doug Lichtman, Mark Lemley and others, for empirical evidence and policy arguments related to it); 2) the process is prohibitively expensive for small firms and individuals to have a fair shake when compared to the patent-filing goliaths (witness not just the cost of prosecution of patents, but the $3 – 5 million price-tag of most patent litigation); 3) the extent to which these first two factors and others favor incumbents over newcomers — and potential innovators; 4) there are also special cases, such as the standards-setting processes for software, where these and other problems arise and are particularly acute (Lichtman’s piece on patent hold-outs is helpful here, too, and a bit counterintuitive); and 5) the patent system often works at cross-purposes with the goals of teaching and learning, in contexts including computer science, biotechnology, and so forth (we at the Berkman Center have an active research project on this topic, funded by the Revson Foundation). Others — Terry Fisher, Lawrence Lessig, Yochai Benkler (see pp. 437 – 439 of Wealth of Networks for a particularly strong form of the critique of software patents), Jamie Boyle, for instance — have made these critiques more forcefully and more convincingly than I have; this is not novel stuff. While of course I disagree on some fronts, often at the margins, with each of these scholars, I owe much to the line of thinking that they’ve blazed in all of what I do.
OK, enter the complicating factor: what if you are an entrepreneur who is devoted to creating a wonderful new generative (to use Jonathan Zittrain’s term) technology, say in the Web 2.0 space? One hard problem faces you early in the process. So, you get the part about being part of a development community, building your cool new platform, sharing it in various ways, making a market for your services, and generating a return for your investors. But what should you do about patenting? Say you, like me and others, are queasy about the current patent system (“yuck, I just don’t like them,” or “I don’t want to participate in that mess”), you don’t have much time or money, and you face an uphill battle in your crowded marketplace already. What’s a sensible, reasonably public-spirited, honest entrepreneur trying to make a living and a return for investors (if you’re lucky, or unlucky as the case may be, enough to have them) supposed to do?
Some investors I’ve heard speak or write on this topic — Joichi Ito, Brad Feld, A VC, and others — are opposed to software patents generally. As I noted above, I’m in the same camp. But most VCs do not share this view: IP rights are increasingly viewed as an asset, or as a defensive necessity, or both. Why? Well, some argue there’s a market emerging in patent rights (see Kenn Cukier’s long and provocative piece in The Economist on this score; but see the largely failed Ocean Tomo patent auction). Others believe that patents are necessary to create freedom of action in most fields of software.
This conundrum is real, and I’ve learned a great deal from finding myself caught in it. As with many people who teach, I have “outside activities” beyond my work at HLS and Berkman. Outside activities are good because they help pay the mortgage in the Boston area. They are also good because you learn things about the real world and keep you from becoming an ivory-tower-bound caricature of an academic; my teaching and research are plainly informed by outside work in the technology field. My outside activities have been primarily as an investor in RSS-related technologies and helping real entrepreneurs found companies in this space. Outside activities are a pain in the neck because I, anyway, constantly feel a tension between my academic identity (teacher and researcher of interesting Internet law topics) and my outside-activities identity (investor and participant in the marketplace). Much of this tension can be dealth with through disclosure — more on that in a moment. Nowhere is that tension more acute than in this patent space.
So, here’s the hard question: if you are an entrepreneur or investor who dislikes the patent system (either you want it scrapped altogether for software or you want it reformed), what do you do? Do you sink the money and time into participating, one-off, against the big guys and try to patent what you’ve done; do you sit it out and take your chances; do you license from someone the protective cover of some patents; or do you try to find some other solution? I do not know the answer, but I’m genuinely trying to puzzle it out. There probably is no right answer for every entrepreneur and every part of the software space (think of it as a variant of Terry Fisher’s disaggregation argument).
One other fact to be noted: large companies in the ICT space — IBM, Microsoft, HP, Sun, whomever — have massive-scale patenting operations. Some are newer to the patenting game but getting geared up, like Google. These companies have patent portfolios in the thousands or tens of thousands, with claims many times that many. IBM alone has over 31,000 patents and applies for thousands more each year. In the Web 2.0 space, Apple has begun to publish a series of applications. Google has applied for patents related to embedding ads in RSS feeds. No doubt the Intellectual Ventures team has thought about working in this space, or will soon. These entities are far from alone — patent applications related to RSS and other Web 2.0 technologies are coming out all the time. (Smaller companies, like Technorati, have applications pending as well.) As I’ve written before, there’s a difference between obtaining IP rights and enforcing them, so it’s not certain that this emerging thicket of patents will preclude innovation. Apple may never sue anyone at all for infringement of the many claims that may well be granted to it. But should an entrepreneur run that risk?
Here’s one idea. What about working with other small-scale entrepreneurs to do what the big guys do? What if you were to hold your nose and apply for patents that protect your work; share your patents with other little guys (and gals!); agree to reasonable cross-licensing terms for other entrepreneurs; and create a dual-licensing regime to allow highly favorable (no- or low-cost) licensing terms for .edus and .orgs (to solve problem number 5, above)? This is the idea that Jim Moore has been championing in the Web 2.0 space. He’s got a long and thoughtful post about it here. You may not agree with the strong form of his argument, but it’s very provocative. A company that we’ve both been working with, Newsilike Media Group, has applied for a series of Web 2.0 patents, which will soon begin to be published (as applications, to be clear, not as issued patents). Jim’s idea, which I support as an important experiment in this space, is to try to create freedom of action for start-ups and others in the Web 2.0 space by blazing a trail. While Jim and I disagree on some aspects of this matter — we have a genuine, long-standing, always-spirited conversation going on this score from which I’ve learned and continue to learn enormously — I have to say I welcome his efforts to bring innovative thinking to the space.
A key component of this strategy is to try to innovate in the area of no- or low-cost licensing for non-profits and educational institutions. Patent Commons, Science Commons, and others have been working on similar or related ideas. We should all be eager to learn more about this line of thinking. I think it’s brilliant. I very much hope that entrepreneurs will one day have an easy way to subscribe to a license — just like a Creative Commons license for copyrighted works — to give away some or all of the IP rights that you’ve obtained. Maybe it’s limited to certain classes of users (the .org and .edu idea), or fields of use, or the like, but allowing you to stand behind your beliefs while competing on reasonable terms in the marketplace. I’d love to see a way where the little guy doesn’t have to unilaterally disarm him or herself, but can do so in a way that lets him or herself sleep at night.
I am wondering what Yochai would say about this idea as a practical matter. In Wealth of Networks, he writes: “Even if the patent owner has a very open licensing policy — say, licensing the patent non-exclusively to anyone without discrimination for $10,000 — most free software developers will not be able to play.” He continues, “If working on a problem requires a patent license, and if any new development must not only write new source code, but also avoid replicating a broad scope patent or else pay a large fee, then the conditions for free software are thoroughly undermined.” (p. 438). So, if you buy this argument but you also live in a future in which large companies get broad claims via their Web 2.0 patents, what, absent reform that anti-patent people would support, should the entrepreneur do? To me, it’s a hugely vexing problem that requires innovative thinking, challenging the “yucky” feeling many of us have about software patents and honing in on short-, medium- and long-term solutions.
(One further, personal note: I’ve long had on my disclosures page my Personal Patent Profits Pledge: if I make money from any patent activity that is not consonant with my beliefs as to what is good public policy, I pledge to donate those profits to the Berkman Center or a similarly-situated institution that is working on the study and appropriate reform of the patent regime.)
There is much more to be said and learned on this topic. I welcome debate and critique; I think that the cyberlaw community, myself included, has been so focused on copyright that we haven’t delved as deeply into patent (and trademark and trade secret, perhaps, too) as we might. I look forward to participating actively in a pro-innovation, good-for-the-entrepreneur, good for society-at-large outcome. Is there a form of software patenting that can help drive innovation, not frustrate it?
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Addendum, with thanks to Phil for a pointer, here is a bit of a terrific short essay from Paul Graham’s “Are Software Patents Evil?“, which covers much of the same ground:
“Do patents encourage or discourage innovation?
“This is a very hard question to answer in the general case. People write whole books on the topic. One of my main hobbies is the history of technology, and even though I’ve studied the subject for years, it would take me several weeks of research to be able to say whether patents have in general been a net win.
“One thing I can say is that 99.9% of the people who express opinions on the subject do it not based on such research, but out of a kind of religious conviction. At least, that’s the polite way of putting it; the colloquial version involves speech coming out of organs not designed for that purpose.
“Whether they encourage innovation or not, patents were at least intended to. You don’t get a patent for nothing. In return for the exclusive right to use an idea, you have to publish it, and it was largely to encourage such openness that patents were established.”
Worth reading in full.
The excitement is mounting at Harvard Law School as the first attendees of Wikimania 2006 have begun to arrive. The Berkman Center is abuzz. The Phoenix wrote a preview and Tom Ashbrook, at WBUR’s On Point, took up the topic of Wikipedia today on the radio, with Jimbo Wales, among others, as a guest. (Of course, The Onion also has its own spin on this matter.) We are so fortunate and honored to be able to host this event and to welcome the Wikimaniacs to our fair city.
Prof. Jonathan Zittrain has responded to the enormous outpouring of Groklaw reader comments to his paper on The Generative Internet with an FAQ posted back at Groklaw.
For instance: wondering how Blackberries and other mobile devices fit into the picture of JZ’s argument about the PC lock-down future we face? Here’s an exchange that picks up on that thread. Z writes: “This is a serious challenge to my argument that after years of general purpose PC primacy, the momentum is shifting in favor of limited-use devices. The next few generations of information appliances will be telling, I agree. My sense, though, is that these devices are less products than they are services. Mess too much with an iPod, and the next iPod update (needed, of course, to work with the next gen iTunes music store, and to coordinate with one’s Nike sneakers so that one can upload running times to the iPod) will say, ‘Sorry, this iPod’s functionality has been modified, and it will no longer work with iTunes.’ Or it will simply overwrite one’s own adaptations.”
Also worth reading: a cool post from CALIopolous on JZ’s article and its Groklaw reaction, complete with a picture of a blender.
(A curious side-note: the article itself, on SSRN and in the Harvard Law Review, continues to climb the SSRN download rankings, having just broken into the top 1000 articles.)
Oxford Internet Institute SDP 2006 participant Nick Anstead has a reflective post on what he thinks JZ’s Generativity theory might mean. Nick points out some terrific problems it raises, then concludes (and I agree), “Generativity is a compelling and very attractive theory. As well as giving a compelling answer, I think it’s greatest strength is that it offers a powerful framework for asking many further questions about what exactly we desire in Internet and ICT development.”
In the past few weeks, I’ve gotten several fresh calls, four in fact (some out of the blue, some from people I know well) about RSS, aggregation, and copyright issues. I think the matter continues to have traction and importance. Two follow-ups:
– I never managed, somehow, to see a very fine reply from Nathan Yergler to a post of my own a few months ago. I had proposed a series of 5 licenses specific to syndicated online sources. (I understand that Nathan works for CC in a technical job but was not writing as a CC employee.) His sense is that there is a need for more explicit licensing of citizen-generated content, but that CC licenses (and other things, like full copyright and the public domain) already cover the five variants that I had in mind. It’s a nice argument. I have to think about whether I agree in full — there are reasons why CC Attribution 2.5 may not get the job done in full for all users, say — but if he’s right, then we’d need no new licenses, but just a campaign to get people to know about the options and to use them in ways that reflect their desires related to aggregation and re-use of their content. (Apologies, Nathan, that I’m just getting to reply now, but I managed to miss it the first time; it was a strong argument.)
– Ethan Zuckerman had a terrific post, and engendered more discussion, on just this topic. As Ethan writes, “I want to see Creative Commons succeed. I share Larry Lessig’s concern that artists of all sorts need material to enter the public domain so that we can comment, remix, repurpose and create. I release (with very rare exceptions) everything I do under CC in the vague hope that someone else will find it useful. But widespread abuse of content published under CC licenses will make creators – me included – reluctant to release content under them.”
These posts prompted me to reflect on another matter much on my mind, which is the difference between holding intellectual property rights in the first place and in enforcing them. Admittedly: I am not a fan of a strong view of copyright. Nor, for that matter, do I think may forms of patents make much sense at all, at least in anything like the form that they currently take. That is not to say, though, that I think it’s immoral or otherwise bad to hold IP rights. I think that authors or recording artists or those who make movies should be compensated; I’m not a fan of piracy. The fact that things are right now out of whack in the IP realm (see Lessig’s permission culture argument, among many other good articulations of the problem, and any number of people who have pointed out silly patents getting issued) and the fact that pre-digital IP laws are looking a bit long in the tooth in a world packed with digital natives do not change the fact that I want there to be an incentive to create and for fairness to reign in the world (i.e., for artists and inventors to be able to make a living).
What I’m coming to think is that, absent systemic reform, holding IP rights, some of which, like copyright, attach automatically, is not the primary issue. The issue is much more about what rights we choose to enforce against others and how we do it. The issue is also whether we have a system of accountability where, when we do give away some rights that otherwise would attach, we can hold others to the rights we’ve chosen to retain. This is a sticky problem, especially when choices about enforcement could, recursively I suppose, affect those rights themselves. (An issue for another day, but: this is true also of the tiny start-up that holds a software patent for defensive purposes, to create freedom of action against incumbents, and perhaps who licenses it to other firms for similar purposes. The issue is whether those rights are exercised in an appropriate manner.)
I think a key next step in the RSS and copyright discussion may not be new licenses (if Mr. Yergler is right; or perhaps tweaked ones, if that would help; or perhaps repackaged ones, so ordinary people can figure it out), but rather 1) a clearer common understanding of what people mean when they in fact license their works in this fashion and 2) appropriate systems to enforce those rights when they’re being flagrantly violated. Of course, the copyright system works just fine on this second score (perhaps too well, sometimes!), but I suppose that those of us who are wildly supportive of CC as an essential add-on to the copyright regime may have to be willing to step up and file cease-and-desist letters where necessary (polite ones, perhaps!), even as distateful as that may seem. A great deal, it seems to me, hangs in the balance of getting it right, if the trends in creativity online, syndication, search, and aggregation continue on their current trajectory.
Totally wild conversation on Groklaw regarding JZ’s paper on generativity in response to JZ’s “RFC”. The original paper, published recently in the Harvard Law Review, is here on SSRN.
An extraordinary piece in the LAT, (via John Bracken), on the crackdown on free expression in China. The story’s lead, written by Mark Magnier, goes like this:
“BEIJING — With their control over newspapers, television, magazines and the Internet secure, censors in China are now turning their attention to the dim recesses of the nation’s karaoke parlors.
“The state-run Beijing News reported Wednesday that the Ministry of Culture has issued new rules to prevent ‘unhealthy’ songs from ringing forth in the singalong bars, which are so popular here that people joke that overseas, Chinese join church choirs only because they miss karaoke so much.”
It reminds me of Lawrence Lessig’s famous example of Sony and the Aibo. Sony did not want you to teach your Aibo to dance jazz, which a site called Aibopet told you how to do.
This story also joins the topics of our work on the OpenNet Initiative (looking at censorship and surveillance on the Net) with the Digital Media Exchange (the idea of an alternative compensation system for digital expression).
Remarkably good news coming out of the GV community and beyond: the release of Hao Wu after five months in prison in China. (See Rebecca MacKinnon’s op-ed from April 20 in the Washington Post for more background.) Congratulations to his family and to the international community of supporters who have been pulling for him all this time.
John Palfrey 