Thursday, May 10, 2007

Stupid C|Net Article

Update: Fake Steve Jobs is calling "Why I Love Patents and Copyrights" extremely smart and Mr. Kanellos a "friggin genius". As always, the Fake Steve is good for a nice laugh.

Normally I try to be civil, but the title is seriously warranted in this case. Michael Kanellos has written an article for C|Net titled "Why I Love Patents and Copyrights". Frankly, the article is so poorly researched, ridiculous and biased that Kanellos should be embarrassed for having written it and C|Net should consider pulling it to save face. If I'm mistaken and it is meant to be satirical, C|Net should make it more obvious.

OK, with that in mind, I'll begin dissecting this article piece by piece.

I think patents, trademarks and copyrights are simply fantastic and a primary, necessary driver of the world economy. Without them, the rapid pace of technological innovation around the world would slow to a crawl.
First of all, software was not patentable until the 1980's in the United States. However, the industry wasn't at a stand-still until the 80's. For instance, consider that Unix began in 1969, and its open source offshoot BSD began in 1977. As for copyrights, the fact that entire operating systems are available under permissive licenses such as the BSD license, which essentially waive almost all of the exclusive rights under copyright law except for the right of attribution, disprove this quite easily. In-fact, proprietary Unix vendor USL (later Novell) found BSD so useful that they misappropriated source code from BSD while stripping attribution from the code, breaching the sole requirement of the license.

As for them being a driver of the world economy, tell that to the impoverished nations who can't receive certain medications for their dying people due to patent restrictions.
And frankly, without them, most open-source projects would rapidly wither away: without an intellectual property behemoth like Microsoft to fight, what would be the point?
Up until this point I respected the author's position, despite disagreeing with it. After reading this, I have to conclude the author is either trying to be funny (and doing a really bad job at it) or else is merely trolling for page hits. First of all, as I said before, BSD, an open source project, began in 1977. During that time, Microsoft was a small developer of developer tools and was relatively unheard of. At that point, Microsoft wasn't an operating system developer and owned next to no intellectual property. I could continue providing further examples but I don't want to embarrass Mr. Kanellos too much.
Think of Larry Page toiling away on the early PageRank patents.
The patents were drawn up later. Larry Page didn't start PageRank (the foundation of Google) with a plan of getting rich. Had Mr. Kanellos done his homework, he would know that Larry Page and Sergey Brin began PageRank as a thesis project with no plans to make money from it. In-fact, it wasn't until a couple of years later that they decided to commercialize it.
Nearly every so-called troll turned out to have a somewhat persuasive story. Intellectual Ventures, a patent firm started by former Microsoft chief scientist Nathan Myhrvold, was staffed with fairly renowned scientists who didn't fit the profile of people trying to make a quick buck in court.
First of all, while it is true that Intellectual Ventures is a patent firm, I'm not aware of it having filed any lawsuits against any company (leave a comment if I'm mistaken). Second of all, the fact that they don't seem to fit the profile of people trying to make a quick buck doesn't change the fact that they extort people and companies into investing in them in exchange for a covenant not to sue.

The next three examples Mr. Kanellos provides involve unnamed people and unnamed patents, so as much as I would love to refute them, I sort of can't (on the flip-side, these unnamed people and patents don't exactly bolster Mr. Kanellos' argument).
The difficulty in coming up with federal patent reform and the uncertainty surrounding how some recent Supreme Court decisions will play out show that striking a balance isn't easy.
The recent supreme court ruling you speak of, KSR vs. Teleflex, wasn't about "striking a balance", but was instead the Supreme Court ruling that the Federal Circuit was permitting abuse of the patent system by upholding obvious patents, sort of like the blatantly broad and obvious ones Verizon used to attempt to shut Vonage out of the market. Technological progress indeed...
But when you steal movies, you're also whittling down the royalty checks for some old lady who had to make out with William Shatner in a bit role on Star Trek.
Copyright infringement and theft are two entirely different things my friend. Not to say infringement isn't wrong, but theft is when you deprive someone of a physical object.

Anyways, my point in writing this article isn't to argue the flip-side, that patents and copyrights should be abolished, because I don't think they should. However, Mr. Kanellos distorts the issue. Most peoples' issues with copyrights and patents are not the fundamental ideas of them, but the onerous laws that are now in-place. For instance, I agree that copyright is necessary to provide an incentive for creating something, but please explain to me why copyrights should last until 70 years after the person receiving said incentive dies? The reason is greedy corporations want to continue turning a profit while locking up our culture for over a hundred years. Another example is the DMCA, which essentially stripped away all of the public's rights under copyright law and fair use.

Anyways, I still feel like crap today and this post is getting too long. Maybe I'll update it tomorrow or post another....


Mercury Merlin said...

Well, I'm not averse to the idea of abolishing copyright, though there might be some other things that needed doing in that circumstance, even if it wouldn't be recognisable as 'copyright' in the same sense.

Certainly when I look at the present situation of automatic and effectively perpetual copyright I have little difficulty in coming to the conclusion that nothing at all would be better than the present broken system; OTOH I could easily see a dose of sensible and moderate reform, such as:
=> reducing duration to 7 or 14 years
=> making copyright not automatic but only in effect either through registration or perhaps just through simple assertion ('All rights reserved') so that not every note, email, blog comment etc need be covered by copyright
=> declaring all non-commercial use to be fair game, instantly legalising file-sharing, fan-based derivative works, and so on - and those hobbyists would have the promise of possibly being able to commercially exploit their efforts within not too many years, while at the same time organised commercial counterfeiting/pirating of recently released work would still be illegal and could be pursued vigorously, with a money trail to follow and seize

Not rocket science, and perhaps the end of the line for certain large corporate entities, but far better for our society and our economies as a whole.

watching_eyes said...

Your ideas are quite good (referring to Merlin's comment, not my own post :-P). I agree that limiting copyright to a much shorter term than essentially perpetual is a sensible solution to the copyright problem (and a potentially good solution for tech patents as well).

The Founder's License (or something like that) from Creative Commons is similar to this line of thinking. However, copyright holders have to opt-in to this program, and the ones that do so are few and far between. And, of course, major corporations are highly unlikely to opt-in to this program.

Until politicians escape from the wallets of corporate America, nothing will change unfortunately.

Mercury Merlin said...

You're welcome, I've been grokking this stuff for a while now, and it's a very interesting time to be alive and see this happening - I fully expect to see major reform and/or abolishment of copyright in my lifetime, especially as the younger generation who have grown up with file-sharing come into circumstances where they can do something about it.

Techdirt's recent series of articles on the economics of abundance, when the marginal cost of production is zero, have been fascinating, and seem to be right on the money - and a similar message is coming through all kinds of other routes as well.

Also relevant is that this is not necessarily dependent on what America does - it makes a lot of sense for other countries to repudiate excessive intellectual monopoly privileges, even if it means derogating from the Berne convention if necessary - developing countries such as those in Africa, Asia, and South America stand to gain much advantage from that sort of approach, just as the United States benefitted from equivalent tactics at an earlier period in their history.

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