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26 January 05. An apology First, I apologize that the book will not be free (as in beer). In fact, it's the opposite of free: $28.95, paperback, 150 pp. It seem the publisher is shooting for business schools and people with expense accounts. Authors and presses are always at cross-odds on this one, I imagine, in that the author always wants as wide a readership as possible while the press wants to maximize profits. My press, which has a lot of really smart people who work full time on coming up with prices, decided that the profit-maximizing scheme is to ignore all the thousands of people out there in Internet-land who wouldn't think twice about buying the book for ten bucks in favor of scoring a few good business school reading lists. I apologize that the book will not be free (as in speech). I don't think I'm allowed to put a copy online, and will have to ask nicely about doing so when the book is out of print. You'll probably see about three out of nine chapters soon, though. It certainly won't be in any hip new formats like a wiki any time soon, since I don't know how to set one up and am not in the mood to try right now. I like PDFs. I apologize that the book is in Word format. This would have been a wonderful opportunity to try to talk [name of Institution] into not using a Microsoft product for just once, already. But [name of Institution] has drunk the Kool-ade and come back for seconds. I mean, it's sort of offensive how many things they do manually because Word doesn't do it automatically, but they stick with it anyway. I'm just happy that editor finally broke down and did some of the formatting for me, probably after I mucked it up so much. [Seems that Word has both character styles and paragraph styles, and applying one of each to the same section is an ordeal which was too much for me.] I apologize that the book won't be out before May. The fight over software patents is going on in Europe now, but I can't really contribute. On a brighter note, it's modestly likely that the debate will be reopened on 2 February, meaning that the full debate will last up to another year. But the whole thing might get resolved next week. Just another source of anxiety in my life. I don't apologize for choosing a paper book format over faster and freer e-media. You may place equal weight on well-written words regardless of the media, but there are stodgy people who just don't trust it unless it's bound, and a lot of those people are legislators. If 100% of the anti-software patent propoganda is in digital form, the team does itself a disservice. There's also some logic to the paper book format which we hipsters sometimes pass over. By publication, [Name of Institution] will have given the book to four peer reviewers, two editors, a proofreader, and a fact checker. They're gonna try their darndest to ensure that the book you get has no errors, on both the mechanical and the conceptual scales. For my part, I am totally paranoid about writing the book in a way that I am not about a PDF that I'd put online. It's trivial for me to fix something dumb that I say in a PDF, but there's nothing the future me can do if he cracks open my future book and finds a stream of embarassing I can't believe I said that statements, and that affects how cautiously the current me writes. I've re-read the entire book cover to cover at least two dozen times, and re-read each individual chapter at least that many times again. By contrast, I think I read my dissertation cover to cover about twice. As a digression, this has a few implications for journals and other presses that are on their way online. The paper is entirely expendable, and good riddance to it, but the effort that goes in to the paper--the author's paranoid revisions, the peer reviews, the editor--all still need to be there to make for a work of lasting relevance and credibility. The fast publications have their place, and I think the people who discredit g>Wikipedia just because it's Wikipedia are morons, but good academic literature requires having people who dedicate themselves to an article and focus their best efforts upon it. [As a further digression, notice how far removed this is from the idea of the peer reviewer who is entirely anonymous and writes only one response to the article and then answers no questions. When the revolution comes, the current peer review system will be the first against the wall, paper or not.] Readers need to recognize this as well: lots of people assume that if a paper is online, then it hasn't been vetted properly, but a good journal can indeed do good editorial work and then put the results online. We need to train readers to do the basic research to determine whether a journal is well-reviewed or not instead of just assuming paper=good editorial and computer screen=bad. It's hard because it's not black-and-white. But in the mean time, here in a world of readers who don't put out the effort, I've got a paper book coming out which will impress lots of readers who normally wouldn't take my side of the debate seriously. For the rest of you who would take me seriously to begin with, I apologize that the book has been made relatively inaccessible for the sake of increased credibility to the stodgy.
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02 August 05. Lawyers living up to their sterotypes
This is just me venting because the Patent Reform Act of 2005 doesn't mention software patents; please don't take it as a reasoned essay. The smart money says the Act is gonna die in committee anyway. I'm obviously biased, but I am increasingly annoyed by the pro-software patents side of the debate. There are loads of pro-software patent commentaries out there: Mr. PZ of Chicago, IL's little near-rant, the majority of the writings of Mr. AHH of somewhere in Germany (who has gotten better with time), the recent book by Mr.s AJ and JL  , and even the extensive hard-to-link-to writings of some of my coworkers like Mr. KD of Chicago, IL. As far as I understand them, all of these guys argue that patent law should be applied to software without modification.What do these guys all have in common? They have little or no idea how to code. They're patent lawyers/academics, and if they know what `Turing completeness' means, they're keeping it entirely to themselves. I don't mean to belittle their abilities---they are mostly lawyers in tech industries and have shown themselves to be smart cookies---but they ain't practitioners. Time and time again, I read from lawyers `software is just like any other form of invention', and from programmers I read `software is vehemently different from other forms of invention.' Judge PP, of London, UK cites another judge who has the modesty to state "I confess to having difficulty in identifying clearly the boundary line between what is and what is not a technical problem for this purpose. That, at least to some extent, may well be no more than a reflection of my lack of expertise in this field." But Judge PP does not cite him as having the wisdom to confess ignorance---no, Judge PP tells us he's thought it through and there is no solution: "Many have tried to frame an acceptable definition, but to the best of my knowledge none have succeeded. It is like the equally vexing question, 'What is Art?'. The hard truth is this: concepts of that sort have no existence." That is, Judge PP observes that there is a debate about drawing some sort of line, and restates the debate in a manner that makes it impossible to resolve. This is not helpful. If the term `technical contribution' is too vague to be a useful guide in the question, throw it out and search for a new vocabulary. The symmetric version of the argument would be for the engineer side to say `they're different for the following reasons' and the law side to say `no, those reasons are illusory for the following other reasons'. However, I have yet to see a pro-software patent author seriously address the distinctions like this. Usually, the response is `Oh, but if you look at it another way, it's all the same'. Again, crappy argumentation, because if two things are the same from one point of view but different from another, then they're just different---especially when the one who insists they're different is the practitioner. Nor does the fact that different engineers draw the line in different places mean that all lines are invalid. The law says that you have to cross in the crosswalk, but some think that if you're walking on the line then you're outside the crosswalk, and some think you're inside. Therefore, the legal side would conclude, there is no definable concept of `crosswalk' and all jaywalking laws should be stricken from the books. Pick one definition, stick with it, and the occasional grumbling about how the line isn't quite in the right place will work itself out. A further problem here is that the legal side naturally looks at it from a `here's how we lawyers do it' perspective and the programmers from a `here's how we engineers do it' perspective. But again, this is asymmetric, because the law should serve the industry, not the other way around. If how we've always done it in patent law differs from how the industry wants to do it, there had better be a really good reason for preserving the patent law. Sometimes there are, but the stock arguments about fostering invention aren't good enough, because the other side has a long list of reasons why it doesn't. Another tip for argumentation: if you say `patents foster innovation' and the other side says `but software patents don't for the following reasons', then `yeah, but patents foster innovation' is not a valid response. Next tip: if there are a few heads of industry and full-time lobbyists arguing a point, and a classroom of twelve-year-olds with blogs arguing the same point, don't focus on the kids. You do get to brush of the idiotic arguments, and there's some value in doing so, but you don't get full points until you've addressed the more serious points too. E.g., this guy critiques people who complain about the massive breadth of patent applications. He points out that they're just applications, and of course the applicant will ask for the moon---doesn't mean the Patent Office is gonna give it to them. He's right, and I too get annoyed by people who forget to distinguish between a patent application and a granted patent. But then a great deal of press is about the obviousness of granted applications, and the page doesn't touch on these. It picked off the easy argument and filled three screenfuls doing it, but it didn't progress serious debate. The usual lawyer's response to the obviousness of granted patents, by the way, is to point out that the details of the patent are not entirely obvious, and are somewhat comparable with the detail of invention of physical patents. First, this is demonstrably false. Since this is a rant and not a coherent essay, I won't go into substantive details. But if the official rules indicate that these patents are good, and thousands upon thousands of experienced programmers think they're bad, then maybe it's time to change the rules. There are often cases where legal consistency makes sense but isn't intuitively obvious, but it is the burden of the law makers to maintain a valid justification for those laws. In general, too many lawyers look upon the engineers whom the law is intended to benefit as idiots. Condescension abounds. Of course, the software industry isn't a monolith, and the guys who show up at these patent attorneys' offices are the software authors who (heart) patents. But to listen to those practitioners who agree and just brush off the majority still takes a little more closed-mindedness than I thought most really smart people were capable of. One side is really pissed off, and the other side simply doesn't comprehend why, and further doesn't have any interest in finding out. They're the status quo, so I guess they don't have to bother. Post hoc ps: Ran across another interview with an IP supporter.
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02 October 05. An old sign
Joe: Hi. I'd like to leave my cat here at the pet shelter. Bonus: business methodsJudge Rich, the guy who invented the concept of software patents in his 1994 In re Alappat ruling, did have one half-decent reason why he knew what Congress was thinking when it wrote the Patent Act of 1952: he's the guy who drafted it. The `nonobviousness' requirement is basically his idea.He's a creative guy. In his 1998 State Street ruling, he also brought patents on business methods into existence. In fact, he's sort of bitchy about it: "[When the lower court made the ruling we overturn here,] the court relied on the judicially-created, so-called 'business method' exception to statutory subject matter. We take this opportunity to lay this ill-conceived exception to rest. Since its inception, the 'business method' exception has merely represented the application of some general, but no longer applicable legal principle..." So who are the idiot judges to use such a principle? Who is he making fun of when he expresses his disdain for this "ill-conceived", "judicially-created" exception? Why, himself, because he excludes prior rulings which would have informed the software patent issue in In re Alappat using the business method exception. His ruling depended on saying that the court has consistently accepted certain off-the-wall patents, but there were two that were disembodied algorithms but were rejected; to keep his argument consistent, he brushed those two rulings aside by stating that their rejection was based not on the construction of the claims or what-have-you, but on the business method exception: "Maucorps dealt with a business methodology for deciding how salesmen should best handle respective customers and Meyer involved a 'system' for aiding a neurologist in diagnosing patients. Clearly, neither of the alleged 'inventions' in those cases falls within any Section 101 category." (31 USPQ2d 1555, 33 F.3d 1541, or just search for it) How Judge Rich went from putting disdainful scare quotes around "invention" to putting scare quotes around "business method" in four short years is left for the reader to ponder. Speaking of scare quotesOne of the favorite lines from the patenting lit of late is that "Anything under the sun that is made by man" is patentable. This comes from the Diamond v Chakrabarty ruling, which ushered in gene patents. Again, it cites the Congress of 1952 as stating this.OK, so let's ask the Congress of 1952, notably, Senate Report No. 1979, 82d Cong., 2d Sess. (1952), which is what Diamond v Chakrabarty was citing: "A person may have 'invented' a machine or a manufacture, which may include anything under the sun that is made by man, but it is not necessarily patentable under section 101 unless the conditions of the title are fulfilled." From which we conclude that the Congress of 1952 is OK with patents on genes, software, and business methods. A close reading of any of the rulings which ushered in these new systems reveals a great deal of sophistry which basically boils down to the judge stating "I would really like this new subject matter to be patentable. There is no subject matter exception. There never has been a subject matter exception. There never will be a subject matter exception." Typically, the ruling which changes everything is preceded by a few dozen rulings which say that the new subject matter shouldn't be patentable until the Congress comes out and explicitly states that patenting this new field really will make for a better economy. Then the new ruling comes along and says that no, the Congress of 1952 is very much OK with this new technology, even if they couldn't conceive of it even in science fiction. Clearly, this sort of argument requires a really, really, close reading of the pre-tech statutes. I'm uncomfortable that patent law is based on tea-leaf reading by the Judiciary instead of a direct statement from Congress. [link][no comments] |
30 October 05. falsifiability
One of the oft-given responses to the question 'what is the key to scientific endeavor?' is falsifiability. It is what distinguishes science from religion, which makes claims which are clearly designed to be impossible to falsify (He meant it to be that way, regardless of how it is). Economistscan not do experiments. There are the ethical problems of how quickly one could screw up people or an economy, and there are the practical problems that getting everybody to all comply with your dumb idea may require billions of dollars. Therefore, all we have to falsify our claims is econometric techniques on existing data, and this is why it is of the utmost importance that economists remain firmly honest and clear and theoretically correct regarding all statistical techniques. If all falsifiability relies on your regressions, your regression techniques had better be sufficiently disciplined to falsify things. But this is a digression.Computer scientists, conversely, have it relatively easy. Somewhere up there, I described the two steps as internal verification and external verification, and when designing a computing system, there is no external world. We write down a system where i=i+1 always increments i by one, no matter what the weather or the state of k or the day of the week. That is, there is no external verification step. If you did the internal verification correctly and it doesn't work, it's the engineer's fault; buy new memory and run it again.Of course, external data sneaks in some times. There are two means of falsifying the algorithm in regards to external data. One is the problem of dealing with formats and user data and boilerplate boringness like that. The other is based on claims of data transformation of the form 'this algorithm will take data of the given input form (ignoring the boilerplate boringness) and will then produce output which matches another form. I.e., another mathematical theorem, which just happens to be based on data from outside the system. This gives us a level of semi-internal falsification: all external verification depends on the external data stream, and if we define the data stream as part of the system then we're back to 100% internal verification. IP implicationsPatent law also distinguishes between mathematics and chemistry. A mathematical equation can not be patented; a chemical formula can. Many people who have written on patent law can't tell the difference between the two: well, they reason, you could write down a chemical formula just like you can write down a mathematical formula. It's a bunch of symbols, all identical, and therefore should all be identical under the law. When people make such arguments, I can't tell whether they're being disingenuous or sincerely don't get it.But the falsifiability criterion shows a clear difference. Once the mathematical formula is verified to be true, in symbol-shunting terms, you're done; the true & verified circle has no falsified cut-out in math-land. In chemistry, the falsified cutout covers nearly the entirety of the white circle, leaving a small sliver for results which are both symbolically true and empirically verified. One can write down a thousand chemical equations such that the number of hydrogen, oxygen, and carbon atoms on the left equal the number of such atoms on the right, but the conversion from one to the other happens here in the real world for only a few of them. Helping people find which are the ones which will work is a key (dare I say the key) goal of the patent. Now, some people say that if you write down a complete enough system, then it's all internal verification. The weather affects your chemical reaction? Then include it in your equations. Can't do the reaction in space? Include gravity. Et cetera. Two ways of expressing the problem. First, the calculation may soon become more difficult than the plain old experiment, in which case you won't bother with internal verification and will just jump to external experimentation. Second, there are some things we human folk just don't know. The mechanics of Brownian motion are in some ways cataloged and written down, and in some ways are just anybody's guess. The patenting literature often refers to a person having ordinary skill in the art (phosita), and the question of external verification via experiment can theoretically be reduced to a sufficiently complex symbol-shunting exercise, but can only rarely be reduced to a symbol-shunting exercise that a phosita can actually write down and solve. Maybe it's all equivalent in theory (and this is a philosophy of science kind of question which is in no way resolved), but the practical reality is that an equation and an experiment are not identical. I claim that under correctly interpreted patent law, only externally falsifiable inventions could be patented. Under current law, this is no longer the case. If you write down an equation with the appropriate variable names, you are free to patent. By not distinguishing between internal and external verification, it has become difficult to distinguish between pure math and chemistry. I feel that about everybody who works in the sciences has no difficulty distinguishing between theoretical work and experimental work. That is, we have a concept which is a no-brainer among the practitioners but which patent law ignores. Is patent law correct to ignore it? From the economic perspective, ignoring the distinction is folly, because writing down a good design which needs to stand up only to internal verification is an order of magnitude or two easier than a good design which needs to stand up to external verification. If you can ignore the rest of the world, points to ya, but why are we subsidizing your work in the easy stuff that you'd prefer to do anyway? If you write down an internally consistent system, what have the rest of us learned about the world at large? Some make ethical arguments that both designing an internally consistent system and testing against the world at large are the same sort of work, engaging in some spark of creativity and then verifying the results. Who cares if it's internal or external verification, which is often an arbitrary distinction anyway? In fact, it's the theorists who are really being creative; the experimentalists are just copying the theorists or at best using an informed shotgun approach and trying everything. My apologies to the reader, but I'm counting this as a separate topic, which I'll discuss next time. In terms of advancing the sciences, the internal and external are very different. Designing better methods for building an internally consistent system is a logic problem: given the premises of the system I've written down, what are the conclusions? Designing better methods for interacting with the world at large involves learning the rules of the natural world and how its rules can be mastered. In a generation, those rules will be folded into the phosita's internal system, but when first gleaned from the outside world, it is a real contribution. The theorists are often characterized as the revolutionary ones, but it's often the case that the experimentalists are the ones actually speaking a new word, because they are more prone to haphazard external influences. This is where all the true apple-fell-on-my-head stories are: the guy who invented Velcro, the guy who worked out that his uselessly weak glue won't harm paper and thus invented Post-it notes, the guy whose gas cylinder kept getting gummed up with a slick polymer now known as Teflon, the guy whose sloppy lab technique led to the discovery that penicillin kills bacteria. Better math and better designed systems are good things. We like having fewer moving parts. But this is a substantively different contribution from that made by systems which must interact with the outside world, and it is a mastery of the unexpected and the interaction with the natural world that requires the big cash and dedicated experimentation, and is most likely to provide benefit to others who are designing systems of their own. The patent literature that I have seen makes no mention of the concept of external verification, and I'm not sure if one could actually base a patent system on it. But it gives us another mechanism by which we can see that in the history of patenting was right to agree that mathematical results are not patentable, by giving us another line to draw between pure mathematical equations and chemical formulæ. It should come as no surprise that software falls on the unpatentable, only-internally-verified side of the line. [link][a comment]
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02 November 05. The cult of the inventor
Many think that inventors have an ineffable je ne sais quois which the rest of us don't. They should be rewarded for having It. The handy OED explains that "genius" shares the same root as "genie" and "genesis": it is a spirit breathed into certain individuals at birth, which allows them to do great things without effort or prior training. In either world, the question of how people get rewarded for their ideas remains. Now, it is hard to find examples of people who are not in any way enriched from innovations that they were the first to write down. Employers and entrepreneurs spend a lot of time looking for people who are better than everybody else, and a world-moving product is pretty good evidence of exceptional ability. This guy who hires programmers explains that programming ability is not linear, and you should pay a great programmer a whole lot more than a good programmer. This is especially the case in the incrementalist world, because Joe wrote down the idea first because he worked longer hours or thought a little faster than the next guy, and Joe is likely to continue doing so into the future. In the revolutionary world, Joe was visited by angels, so the invention on his resumé provides no evidence that he deserves the big bucks from new employers. So in the revolutionary world, we need to make sure that Joe gets paid for the revolutionary idea, which is outside of Joe, not for his efforts or labor, which he will continue to carry with him. In the incrementalist world, he'll get tenure somewhere. The next question is the rent-splitting question. Jane invents new device, ManuCo manufactures it for a dollar, MarketCo advertises and distributes it for a dollar, and consumers consume the item for $100. That gives us $98 to split between Jane, ManuCo, and MarketCo. How? This question is entirely outside of economics. On the ethical side, we all say that Jane should get a 'fair share', but as with any ethical position, what is fair is hard to define. The guys at MarketCo are expending a great deal of effort in perpetuity, whereas Jane may have made her entire contribution over the course of a few seconds. In the incrementalist world, the moral weight of her contribution wasn't that huge, since the guys at ManuCo could have put the puzzle pieces together themselves if they'd put enough effort into it. But in the revolutionary world, Jane's je ne sais quois was a unique and essential ingredient to production, and a drop of it is included in every unit sold. A few weeks ago, I had to do a little lit review of the books on patents at the local Borders and Noble (I was asked by a publisher to review a book proposal). There were some that were very direct and honest, mostly consisting of pictures of forms and occasional discussion of legal strategy, but many were imbued with the cult of the inventor. They explained that now that you, dear reader, have rubbed two brain cells together to form an idea, you deserve riches, and they could be yours provided you file the right forms to ensure that the bastards don't steal your idea. Notice how much this sounds like every other get-rich-quick scheme: you're the best, so there's no need to work—it's just a question of getting the system to work for you! Maybe I'm just not cool enough, but I don't know anybody who has built a career off of pure ineffable genius. I do know a lot of people who had a good idea, which was not necessarily a unique idea but was a step or two ahead of its time, and who put a great deal of work into writing products, pitching products, and generally working hard to turn the fugitive fermentation of an individual brain into a career. But wouldn't it be great if you didn't need all that? If you could just have the idea and let somebody else do all the work? The attractiveness of the concept means that the cult of the inventor won't ever go away, and the media will always provide new tools to fuel fantasies of money for nothing. Back to softwareIt is impossible to determine what is revolutionary and what is incrementalist, so the Patent and Trademark Office doesn't try. It is entirely rooted in the philosophy of the revolutionary inventor, and if your idea looks new, it is revolutionary. In an ideal world, we'd be able to ferret one type of invention from another; in the world we have, the best we can do is search for certain proxies, such as, oh, subject matter restrictions. I could not imagine a more incremental field than software. Everybody builds on everybody else's code base, and there hasn't been a true-and-honest paradigm shift in decades. What, object-oriented programming, where you can put your functions inside data structures? (hint: I put pointers to functions inside data structures using K&R C.) Storing data in XML instead of ad hoc data structures? (hint: XML is a special case of SGML, which is a generalization of HTML.) The desktop metaphor? (hint 1: it's a metaphor; hint 2: it was all done at Xerox in the 70s-80s.) For many decades now, people have been talking about writing down something truly different from the function-oriented paradigm embodied in C, and nothing has materialized but nifty trends and syntactic sugar. The nifty trends are indeed nifty and do make our lives better, but they've all been incrementalist in nature. Why is software exceptionally incrementalist? First, I would argue that to a great extent, it isn't exceptional: all research builds upon research. If your chemistry paper doesn't have a lit review, it won't get published. Second, the structure of code is incrementalist: if you want to write a program of nontrivial length, you need to use preexisting libraries to do the lower-level work. That is, everybody who wants to write a program is staring at the same set of tools, trying to assemble them in a new and better manner, and this is a recipe for incrementalism. That's pretty far from materials science, where your new material may be a combination of old, but is as likely to bear only distant relation. Some computer geeks are working on the truly low-level data manipulation routines, but they're mathematicians, whom the ethicists feel are not inventing but discovering, so they can't lay claim on their work. So the conclusion from this perspective is the same as every other perspective: patents shouldn't apply to software. If you're a smart and hard-working programmer, you'll get paid, without the right to exclude others from the code base you wrote down first. Because your code base did come first, and you're the sharp one (and don't forget the lock-in and network effects that are prevalent in software), you have a good chance of making a whole lot more than the guys who show up second. Whether you deserve to make more than the guys who wrote down the idea second is an ethical question with no answer, but in an incremental world like software, it's hard to make the argument that you not only deserve to make more, but deserve the right to tax the second-comers for using what is now declared to be your invention. [link][no comments] |
20 January 06. One server, a thousand laws
I taped a Voice of America show earlier this week about Internet censorship by repressive governments. With four pundits and 22 minutes of air time, none of us got to say much. But I've cleaned up and linkified my notes on the things I would have said if I had twenty minutes to expound by myself; here they are. First layer: the envelope.This one is easy. If a user in China sends a request to Amnesty International's web site, the Chinese government will block it. There are only so many cables going in and out of China, and the government runs the routers attached to all of them.The solution to this layer is via proxies. A proxy is a web middle-man: user sends request to proxy asking that it access amensty.org; proxy does the request and sends the result back to user. The Chinese government thus sees requests going to proxy.org, not amnesty.org, so it doesn't know to block them. This works for about ten minutes, until the watchers work out to put proxy.org on the block list too. The guys at proxy.org then set up a new host at proxy2.com, which is open for a good while until it too gets blocked. Battle continues. The latest advance here is Tor—The Onion Router. It is a network of encrypted proxies, so every time you connect to a proxy, you connect to a different one. Further, you go through several proxies before hitting your desired location, so the link between sender and receiver is still more difficult to detect. The requests go to places like harvard.edu, that would be difficult to block outright, and try their hardest to look like normal Web packets on port 80. Policy implication: if you are in an uncensored country, have modest technical know-how and a reasonably reliable Net connection (the standard unlimited $40-a-month home DSL connection or better), set up a Tor server. If you are in a censored country, put a copy of Tor on your PC. Second layer: the content.This all started when the firing of the editor of the Beijing Daily was sacked for saying too many not-nice things about the Chinese government. 100 journalists walked out in solidarity, and one guy at the paper wrote about it on his blog on MSN spaces. Msn.com is registered to an address in Lake Stevens, Washington, just North of Seattle, meaning that the Chinese government doesn't have much jurisdiction over those hard drives. But they asked Microsoft to delete the blog, and Microsoft complied. And don't forget how Yahoo! helped the Chinese government put a citizen in jail.To be binary about it, we're at a fork to two possible worlds. The first is one where a server needs to comply with the local laws at the source; the second is a world where every server has to comply with every law in every jurisdiction where its content can be viewed, which is all of them. Where are we along the scale? Where do we want to be? The response from the U.S. government has consistently been toward the end of compliance with all local laws. The legally-oriented readers can weigh in on issues of interstate commerce, but internationally, the U.S. is very interested in censoring web sites that U.S. users can see. The first front for this is ethical, such as censoring child pornography. In terms of international relations, this is typically pretty easy because kiddie porn happens to be illegal in most of the rest of the world too. So the U.S. feds call up the Ukraine feds and they get together and shut down the illegal servers in Ukraine. The second front is intellectual property, which is much more difficult because the USA has much more stringent copyright laws than most of the rest of the world. First, it is a felony to distribute—even to link to—the code needed to decrypt a movie DVD. This is only true in the U.S.A.; the rest of the world could care less. So when the MPAA, a private organization based in the U.S., pressured the Swedish government to prosecute the guy who first publicized the decryption code, they complied, but the judge threw out the case as entirely baseless under Swedish law. In Russia, works copyrighted before 1972 are in the public domain, just as works in the U.S.A. from the turn of the century are in the public domain. That means that most of the Beatles' catalog is public domain there and locked down here. Apple Corps, the company that administers the rights (and isn't Michael Jackson a 50% owner?), refuses to put any of the Beatles' music in any non-physical formats, but download away from Russian sites. In fact, forget public domain, Allofmp3.ru has a fully-paid-up and legal radio broadcasting license from the Russian government, which Russian courts interpret to mean that it may distribute music via Internet. Again, they are 100% in compliance with local laws, but Mr. Jackson ain't getting his royalties when U.S. consumers get their music from Russian web sites. The response, to this among other comparable issues, has been for the U.S. government to threaten to take away Russia's generalized system of preferences trade status. I.e., unless Russia changes its laws so Mr. Jackson gets his royalties, Russian goods will be taxed to the point of unsaleability in the U.S.A. This is all a threat that will not possibly come to pass, but it reveals the eagerness of the U.S.A. to meddle in the hard drives of foreign servers. In many ways, the situation is very symmetric: country A's users see data from country B, and so the government of A threatens economic hardship on country B unless it compels its servers to comply with A's norms and customs. The asymmetry is that when A=China and B=U.S.A., the norms are basic issues of human rights, but when A and B are reversed, the norms are about royalty payments. My pundit opinion: the U.S. government should be taking a firm stance that U.S. servers are beholden only to U.S. law. Microsoft would probably love this law. The guy in Seattle who had to sit there and censor a blog on behalf of the Chinese government did not want to do it, and I cite as evidence of this the fact that the cache was left up [If you're reading this more than a few days from now, that link won't work, but trust me...] A dumb little two-line U.S. law saying that U.S. corporations may not engage in censoring requests from a foreign government would buy MSFT's lawyers time, as they say `well, gee, China, we'd love to comply, but our hands our tied.' However, I continue to opine, the government of the Bastion of Freedom will never pass such a law. First, there are less ethically-minded interests in the U.S.A.: all web pages in Tunisia are filtered thanks to software by Secure Computing of San Jose, CA. Second, by taking a strong stance that U.S. servers are beholden only to U.S. law and China had better butt out, it implicitly states that Russia's servers are beholden only to Russian law, and the U.S. had better butt out. I don't mean to imply that the U.S. government is incapable of hypocritical rulemaking, but it's still tougher than consistent laws, and to date the consistent route the U.S. government has taken is the one where royalties are likely to be paid and dissidents have no safe harbor. Recall my prior notes about how, as valid as we may feel U.S. copyright may be, protecting it in foreign lands is going to cost the U.S. consumer; it is also going to cost the Chinese, Tunisian, or Iranian dissident, who will see no support from the U.S.A. [link][no comments] |
12 May 06. Patents: an empirical hole
In many of my little writings, I have taken as given that patents are a good thing. They foster innovation. And y'know, I basically believe this for mechanical and chemical inventions.
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24 June 06. Patent reform update
I'm not sure if I'd mentioned this before, but there is dwindling hope that the Congress is going to do anything about eliminating software or business methods. I am not making the following dialogue up:
Me: So what if you got 1,000 letters from programmers asking you to do
something.
So we return to the Supreme Court. As noted in this op-ed, the Court has three (3) chances to fix patents, and of the three, the one that really matters is LabCorp v Metabolite, a case that directly raises the question of what should or should not be patentable. On Wednesday, the Supreme Court disimissed it. Why? That's the part where we try to read tea leaves. Here is the full text of the statement. For those who don't know their semilatin, a writ of certiorari (cert among the cool kids) is the Supreme Court's statement that it will hear a case.
The writ of certiorari is dismissed as improvidently granted. THE CHIEF JUSTICE took no part in the consideration or decision of this case. That's all we get. The direct cause was procedural issues: the subject matter question wasn't argued in the lower courts, because the opponents of the patent knew that it was a losing argument, so it's debatable whether the Supreme Court gets to consider that issue or not. The Chief Justice didn't participate, by the way, because his old law firm had represented LabCorp. Readers will recall that Justice Roberts's confirmation hearings included some amount of chiding of Mr. Roberts for not taking more care to prevent conflicts of interest.
As for the oppositionThey were a little more chatty. Justice Breyer wrote for the minority (with Justices Stevens and Souter joining) explaining why the case should not have been dismissed.Now, the entire concept of the software and business method patent was invented by a Federal-level court (the Court of Appeals for the Federal Circuit, CAFC), and one could even argue by a single judge (Judge Giles Rich). This was all in the mid-90s, and since then we haven't heard a word from the Supremes about whether the CAFC rulings that created these things (In re Alappat and State Street being the key rulings) were valid or not. But here's a snippet from the dissenting argument:
Neither does the Federal Circuit's decision in State Street Bank help respondents. That case does say that a process is patentable if it produces a “useful, concrete, and tangible result.” But this Court has never made such a statement and, if taken literally, the statement would cover instances where this Court has held the contrary. The Court, for example, has invalidated a claim to the use of electromagnetic current for transmitting messages over long distances even though it produces a result that seems “useful, concrete, and tangible.” [this was over Samuel Morse's patent on all of telecommunications] ...And the Court has invalidated a patent setting forth a process that transforms, for computer-programming purposes, decimal figures into binary figures-even though the result would seem useful, concrete, and at least arguably (within the computer's wiring system) tangible. The first word we hear from the Court about the current breadth of allowable patents, albeit from a minority, strongly disapproves. For the computer geeks out there, notice that the idea that a computer's wiring makes a mathematical algorithm into a physical device is explicitly addressed and rejected. So what will the Court do next? Personally, I have no clue. It seems clear that at least a few members of the Court are seeking out a new test case to take on the issue of patentable subject matter. But whether cert will be granted in the future depends on why cert was ruled to be “improvidently granted” in this case. If it was truly and honestly because of mere procedural issues, then there's no roadblock to future cases, and the lawyers presenting cases in the lower courts will be happy to present subject matter arguments in the hopes that they'll move on to the top leauge. But if LabCorp was killed on a technicality becaue a majority of the Court realized that the only sensible way to rule on it would be to seriously narrow the current scope of patent law, then we're stuck.
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08 August 06. The abject failure of IP PR
Intellectual Property advocates are a group that all of you should be watching, as an example of how not to do public relations. The best evidence of this is the emergence of the Swedish Pirate Party, an organization dedicated entirely to contravening what it sees as oppressive intellectual property laws. It's pretty bad news when people form political parties to oppose something nobody had ever heard of a few years before. Since the technology is in place, IP holders need to win hearts and minds and show that they're reasonable people if they want people to stop copying their media, and the rise of groups like the Pirate Party show that they are very much not doing so. In fact, it seems like the more the public complains about IP laws, the more IP advocates push for more extreme measures and rhetoric. The IP industries have been in the midst of this PR disaster for the last several years. The Sonny Bono act passed in 1998, extending copyright to 95 years, but at the cost of giving opponents an easy target. Is there an ethical argument for 95 years of copyright protection--that you can make to a twelve year old? The public doesn't see how such wide scope fosters new creative works, and begins to question whether more sensible copyright rules might be suspect as well. The software/business method patent issue has perhaps been the worst thing to happen to patents in a century. Given that there are so many examples of patents that seem so obvious and only seem to block competition, stock arguments that Patents Foster Innovation are wearing thin. People who used to know nothing about patent law now regularly write their Congressperson demanding that the entire system be shut down, and our IP advocates have In re Allappat and State Street to thank for that. Advocates point out that there are subtleties in “one click”-style patents that make them useful and distinct from prior art--but are unable to explain that to a lay-voter. Software and business methods have brought public focus to a corner of the law that used to manage itself; if we want patent law to survive, we should acknowledge that some things should not be patented. There are many IP advocates who (1) want patent law to remain a one size fits all system, (2) want it to remain strong for pharma and electronics, (3) want it to cover web site designs, and (4) want the public to be OK with it. You can have at most three out of those four. We used to have (1), (2), and (4), but then the patent courts got greedy and made up (3), and suddenly there are prime-time news spots about the disaster that is patent law. (1) and (2) are therefore now under review by Congress and the Supreme Court, and (3) and will be soon. The U.S. has had PR issues as a whole, with much of the world seeing it as an imperialist aggressor. E.g, the Pirate Party was originally organized around a BitTorrent-oriented web site. The Pirate Bay is royally pissing off U.S. IP-holders, but is doing nothing illegal under Swedish law. The police seized their servers a month or two ago, brought in their best prosecutors, and still failed to find reason to halt their operations. So, back to the PR disaster that is current IP law: how do you explain to a Swedish twelve year old why she has to comply with U.S. IP law? And I'm not the first to point out that the RIAA is shooting itself in the foot with its never-ending lawsuit campaign, which wholeheartedly supports the caricature of IP as being written by and for Hollywood fat cats. Oh, and a final note to the RIAA: Pirates of the Caribbean II has grossed $361 million as of this writing. Calling kids pirates is not going to make them feel bad about illegally downloading their gangsta rap albums. The best thing IP lawyers could do for themselves is to indicate that they are capable of moderation. I read many IP blawgs on a regular basis, and I can recall about one (1) instance where an IP lawyer said that IP law has tilted too far in favor of rights-holders. I'm loathe to link to trolls, but here is a post about how dumb the Supreme Court is, and there are many more where that came from. I am not well-versed in every field of law blogging, but I have never seen so many lawyers insist that the Supreme Court is run by idiots. Sure, all of us have that one Supreme Court case that seems totally moronic (at least Dred Scott), but to say that the Justices have no comprehension of a major field of law seems a bit beyond the pale. The explanation for the rift is obvious: the trolling IP lawyers care only about patents, while Supreme Court justices care about patents and their effect on the economy at large. My impression is that IP lawyers are happiest when they're left alone, and all those mean judges who try to balance economic outcomes and those dumb voters who write their Congressperson about copyright go back to fighting over abortion. The best way to go back to IP law being about the things IP lawyers love to debate, like the applicability of the exceptions of 35 USC §271(g) to hearings under 19 USC §1337, is for IP lawyers to concede ground on the recent expansions to IP protections that the public has found to be so onerous. Policy recommendations: the various IP practitioners should acknowledge that they are in the midst of a PR disaster, and comport themselves accordingly, rather than continuing to berate the public for not seeing it their way. The RIAA would maybe improve its public perception if it stops suing children for violating laws that they don't understand. Patent attorneys need to start pointing out the frontiers of what should not be patentable. Anybody who says that artists won't produce unless they have a 95-year monopoly is just not credible. There are many steps to reversing the PR disaster, but I believe that the first step is for IP rights holders to publicly display that they have a reasonable view of what should be in the public domain and what is fair use.
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