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The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Friday, February 11 2011 @ 02:16 PM EST

The White House is asking us to give them ideas on what is blocking innovation in America. I thought I'd give them an honest answer. Here it is:
Current intellectual property laws are blocking innovation.
President Obama just set a goal of wireless access for everyone in the US, saying it will spark innovation. But that's only true if people are allowed to actually do innovative things once they are online.

You have to choose. You can prop up old business models with overbearing intellectual property laws that hit innovators on the head whenever they stick their heads up from the ground; OR you can have innovation. You can't have both. And right now, the balance is away from innovation.

Let's take some specific examples to show why that is so. When Napster first showed up, it was innovative. Heaven knows it changed the world. And instead of letting this creativity flourish, make money, and create jobs, the law was used to kill it. And kill it it did. The law is still trying to kill or at least marginalize peer-to-peer technology, and so it has never been used to the full.

To understand why that is a loss to innovation, you might want to watch this 2005 panel discussion on peer to peer software, "P2P: Pirates, Producers, & Purchasers: Toward a New Ecology of Music and Entertainment," one of the most depressing you can watch if you actually care about innovation. You can view it as a video here. It was at a conference on innovation and IP law that I attended that was sponsored by the University of North Carolina, and I'll never forget Gene Hoffman, who had been the CEO of eMusic, who talked about how innovation was being restricted and contained by the law and pointed out how much money could have been made with the new technology for enjoying music if fear had not blocked innovation. He and others on the panel also talk about some economic advantages of peer to peer and how it can reduce the costs of bandwidth in distribution, which is a real factor that could help independent startups.

Today, thanks to the heavy hand of the law, not much new was allowed to happen, and eMusic's customers are of an average age of 39, and of course it's young people who can make a music business hugely successful. Trying to figure out how to offer music legally and also in a way that will appeal to young people hasn't yet been completely solved, mainly because no one is trying to, and most all the innovation has been going into trying to block piracy instead of thinking about ways to appeal to customers, and it's holding innovation back. Peer to peer, as one panelist points out, makes it possible to offer esoteric music that is not otherwise made available for cost reasons. The panel convinced me that shortsightedness was a block against innovation, and it's even more depressing to view today than it was five years ago. When Grokster was decided in 2005, it really was a death knell for a certain kind of innovation in the music space.

That was a choice that America made. They could have changed the law, if they had had the foresight to realize this was a new way to make money from technology and for artists, but instead it chose to protect the old business model. So it used a legal hammer to force technological innovation to cease, go underground, or self-limit what it could otherwise do.

Now, you can make that choice. It's up to a society to decide such things, and it's not for me to tell anyone what to choose. Personally, I try to keep the law, no matter what I think of it, because that is what civil society means. But it was a cross-roads moment, and America didn't choose innovation. If you really want innovation, you have to let it breathe legally.

Lobbyists aren't in place for innovation, of course. If politicians listen only to RIAA lobbyists, you will never have any technology innovation, except perhaps in DRM, because lobbyists aren't about that at all. US CTO Aneesh Chopra acknowledged that tension in this CNET interview last September (at around 7:45). Innovation comes from some college kid in his dorm room. And he can't lobby. He doesn't even know he needs to, let alone how. So part of the answer, if you really want innovation, is not to follow the money. You have to be able to visualize it from the innovation, not just put it in your pocket.

Let's think about DRM in this context. That reminds me that you can watch a video of Cory Doctorow's talk on DRM at that same NC conference here. It's funny and true at the same time. And please read DRM and the Death of Culture by Simon Phipps, if you missed it earlier. He responded to a comment on DRM in the context of the discussions at the time about GPLv3, which was at the time being revised:

A comment writer (Christopher Baus) said of DRM:
I might be the only technologist on the other side of the DRM fence. To me it is like checking my lift ticket when I get on the ski lift. I might find that a bit annoying, but if ensures the resort can stay in business from collecting ticket money, then that is a net good thing for me. If the ski resort goes out of business I can't go skiing, and I would resent those who got on the lift w/out paying.
I think there are quite a few people around who have Christopher's view, which is unfortunately rather simplistic. DRM - the imposition of restrictions on usage of content by technical means - is far more than that. It's like checking the lift ticket, yes, but also the guy checks you are only wearing gear hired from the resort shop, skis with you down the slope and trips you if you try any manoeuvers that weren't taught to you by the resort ski instructor; then as you go down the slope he pushes you away from the moguls because those are a premium feature and finally you get to run the gauntlet of armed security guards at the bottom of the slope checking for people who haven't paid.
Seriously, will innovation flourish in an atmosphere like that? What is it teaching young people?

And do you remember when Adobe released a digital copy of Alice in Wonderland with a restriction that computers couldn't read it aloud? Alice in Wonderland. It's in the public domain, but they actually thought is was acceptable to restrict it that way. The law may let them, but how is that going to encourage innovation, a law that lets you do that to a public domain work? DRM also restricts access to knowledge, which ipso facto means it works against innovation, in the same sense that lack of access to the Internet does, as the President pointed out.

What about the DMCA? Now, Congress and the US Copyright Office were warned about the effect the DMCA would have on innovation and on research. But they didn't care about that as much as they cared about protecting businesses already in place. So they passed it. What are the results? Innovation has become dangerous. Research has been chilled. Researchers won't even attend US conferences any more, let alone do research here, because they are afraid of being attacked by DMCA-wielding companies or prosecutors. Some won't even tell when they notice vulnerabilities. Research projects were shut down in fear of the law. And after the government and Adobe went after Sklyrarov, after what happened to him, can you blame them for being afraid?

Why fear? Elcomsoft, who employed him, raised one issue in a court filing that still hasn't been answered -- namely, how do you know what is and isn't allowed?:

The government's Opposition provides absolutely no insight into the significant questions presented by Elcomsoft's Motion to Dismiss the Indictment for Violation of Due Process. The most serious of these questions -- how does the maker of a circumvention device know when he or she is designing or marketing a prohibited tool-- is ignored altogether. This is troubling given that the government apparently concedes that Congress did not forbid circumvention devices altogether; and that Congress intended to permit the circumvention of usage control technologies for the purpose of fair use or other non-infringing uses once a copyrighted work had been lawfully obtained and accessed.

Although the government refuses to address the ambiguities of the DMCA, this Court must. Elcomsoft produced a product -- AEBPR -- for the purpose of allowing legitimate non-infringing uses of works that have been lawfully accessed. Based on the government's interpretation of Section 1201(b), (Opp. Mem. at 32:11-24), any person who makes any circumvention technology is subject to criminal prosecution because the government believes that there is no constitutional requirement that the technology be designed or marketed for an unlawful purpose -- specifically, infringement of a copyright. In fact, under the government's view, password recovery tools that Elcomsoft has manufactured for years -- and that heretofore have been applauded by law enforcement and others -- could subject Elcomsoft and manufacturers of similar products to prosecution because such products could circumvent copy controls placed on word processor and PDF files containing copyrighted works. See section II.B., below.

Simply stated, Section 1201(b) is impermissibly vague because there are no standards by which legitimate manufacturers of technologies which can circumvent copyright usage controls are able to determine if their product is lawful or unlawful. There are no standards to guard against the arbitrary enforcement of the DMCA. The government becomes the arbiter of lawfulness after the conduct occurs. Section 1201(b) cannot and does not provide the kind of advance notice that will protect an individual from being prosecuted. For these reasons, Elcomsoft respectfully requests that the Court grant its motion to dismiss....

Indeed, as the government does not contest, Elcomsoft and other software manufacturers face the ultimate "Catch 22." Consistent with clear and abundant legislative history, Elcomsoft manufactured and marketed a device that circumvents protection afforded by a technological measure in order to allow lawful uses. Notwithstanding, after Adobe complained about a "Russian hacker company" and its product, the government was able to take advantage of the broad language of Section 1201(b) and press charges without regard to Elcomsoft's purpose, as the statute makes no distinction between devices made or marketed for lawful purposes and those made or marketed for unlawful purposes. The government became the arbiter of lawfulness after the conduct had already occurred.

Plainly, the DMCA does not provide the kind of advance notice that will protect an individual from being prosecuted; retroactive notice in the form of an indictment is no notice at all.

How does that help innovation, to make people afraid? Maybe you could make an argument for it, if every country on earth had one law. But they don't. So in some countries, research can flourish. And in the US it can't. Where do *you* think innovation will come from now?

And if you are concerned about cybersecurity, which countries will have an edge, those with the DMCA or those free to know whatever they can?

Again, it's not for me to tell anyone what to do, but if you want to know why innovation isn't flourishing in the US, this is at least a big part of the answer. It's a choice. Innovation or protection of previously established corporate interests.

Then there's patent law. When America decided to allow software patents, was the goal innovation? They always say so. But look at the results in the field of software. As Ben Klemens pointed out in his book, Math You Can't Use, software isn't a product like tractors, where patents might make some sense:

If a technology needs a centralized group to help it advance, then it makes sense to design a mechanism to support those few specialized experts who push forward the frontiers. In such a field, the patent-thicket problem is not a problem because there are only a few actors in the business, so the transaction costs of negotiating exchanges are low. But this story is entirely removed from the reality of software. A third of the industry consists of centralized organizations that only write software while the rest is largely a decentralized body of workers supporting themselves and their innovations through immediate, direct application rather than waiting to put out a product in the near future. As far as Coasian arguments about transaction costs are concerned, this is absolutely the worst case, since buyers and sellers are distributed across the planet. Because every patent is unique, there is no easy way to create a simple market to make patent trading cheap.

The rule that independent invention is not a defense in infringement claims makes sense in a centralized industry. Patents are public record, and it is reasonable to assume that every tractor manufacturer is exerting some effort to watch every other such manufacturer. In the decentralized software industry, this does not make any sense at all: should the sofa company spend time and effort on monitoring Microsoft and Novell’s patent portfolio? Add in the software patent search problems from chapter 5, and the assumption that everyone has full knowledge of the patent playing field becomes still more tenuous.

In short, patents in a decentralized market are Coase’s worst nightmare: every player needs to expend vast quantities searching for the owner of every part of every program, meaning transaction costs piled upon transaction costs. These costs will always exist in every field, but they are magnified in a dense, decentralized network of actors.

So, with software patents, the drain on innovation is real. It's particularly oppressive and counterproductive with Free and Open Source software development. Red Hat explained why in its amicus brief submitted in the In Re Bilski appeal to the US Supreme Court:
Open source software is now ubiquitous, touching the lives of the millions of Americans who do web searching, email, online shopping, banking, and many other everyday activities. It provides the technological backbone of many large corporations and is critical to the technology operations of the U.S. and many state governments. It is playing an important role in economic development across the globe. Even so, its nature and significance are still not widely understood.

The open source model produces software through a mechanism of collaborative development that fundamentally relies on communication of ideas by large numbers of individuals and companies. To understand this model, it is helpful to understand how software is made. Software begins as plain text "source code." Programmers write and edit source code in human-readable programming languages that allow specification of software features and behavior at a high level of abstraction. Software is commonly distributed in machine- executable "object code" form, produced by "compiling" the source code of the software. Since object code consists of unintelligible strings of 1s and 0s, software is effectively unmodifiable unless one has access to its source code.

A good example of an open source project is the Linux operating system kernel, which is one of the most commercially-important open source programs and which is a core component of Red Hat's flagship product, Red Hat Enterprise Linux. The Linux kernel contains several million lines of source code. A worldwide community of hundreds of contributors, including many employees of Red Hat, collaborate via the Internet in developing and improving the Linux kernel.

Open source uses a combination of technological and legal means to facilitate collaborative development and commercial exploitation. Typically, an open source package originates as a community-based project that makes its software publicly available in source code form, under licensing terms that grant very broad, royalty-free copyright permissions allowing further use, copying, modification and distribution. The Linux kernel, for example, is licensed as a whole under the GNU General Public License, version 2, the most widely-used open source license. In making source code available and conferring broad copyright permissions, open source differs significantly from traditional proprietary software. A vendor of proprietary software generally develops the software entirely in-house and provides only object code to the user under severely restrictive licenses that allow no rights to copy, modify or redistribute that code. Such vendors retain the source code as a trade secret.

The open source development model has proven to be highly effective in producing software of superior quality. Because there are many developers working as collaborators, innovation happens rapidly. Because of the many who volunteer their time, and the availability of the source code under royalty-free licenses granting generous modification and distribution rights, the cost of producing and improving software is low. Software bugs and security problems are quickly identified and remedied. Moreover, because users have access to the source code, those users can diagnose problems and customize the software to suit their particular needs.

The open source development model originated in the early 1980s. From that time to the present, open source software has been in a constant state of innovation. Software patents, however, have not in any way promoted the innovations of open source. At the time when software was first released under open source licenses, software patents were relatively few in number and case law appeared to limit their availability. See Diamond v. Diehr, 450 U.S. 175, 18586 (1981). By contrast, it was settled that copyright law covered software. Thus the early innovators of open source software had no reason even to consider obtaining patents on their work. Moreover, since at least the early 1990s open source developers have been broadly united in their opposition to the patentability of software.

This widespread opposition is not surprising, because the open, collaborative activity at the heart of open source is fundamentally at odds with the patent system. Patents exclude the public from making, using, or selling patented inventions. An open source developer seeks to contribute code to the community -- not to exclude others from using the code. The exclusionary objectives of the patent system are inherently in conflict with the collaborative objectives of open source.

This conflict is more than theoretical. Open source software developers constantly face the hazard that the original code they have written in good faith might be deemed to infringe an existing software patent. It is impossible for a developer to rule out this possibility, because there are now more than 200,000 software patents, and those patents cannot possibly be searched and cleared at reasonable cost. Because of the abstract nature of software patents, determining whether even a single software patent claim is infringed is particularly difficult, even for experts in computer science, and experts often disagree. See, e.g., J. Bessen and M. Meurer, Patent Failure 201-03 (2008). The complexity of software projects (open source and otherwise) is such that a single computer program is likely to implement numerous forms of functionality that could possibly be deemed to infringe large numbers of unknown patents. Since code may infringe any number of patents, there is always some possibility of a patent lawsuit that could cost millions of dollars in attorneys' fees and that could result in court orders that effectively nullify the broad grant of rights in open source licenses.

In short, the patent system is not the source of innovation in open source software. Because the system does not reward open source innovation and creates litigation risks for the innovators, the system can only hinder innovation. Thus innovation in open source software continues in spite of--not because of-- the patent system. The successes that have been built on the open source model are likely to continue. It is, however, an opportune time to address the standards that govern the subject matter limitations on patentability, because clarification of those standards will unquestionably influence the future of open source software, and the future of the software industry generally. It may be that clarification of those standards will benefit open source by reducing the risk of lawsuits and encouraging greater participation in the open source community, with associated benefits for the economy and society as a whole.

Let's take Android. It's something new and the world is loving it. So what happened once it became a hit? Patent and copyright infringement lawsuits up the kazoo. Is that going to encourage innovation? And it's not just Android. It's any successful technical product. They all have to spend millions in litigation. And it's a drain on the economy too, because when the plaintiffs win, that money isn't a win for innovation, not when the law allows patents to be owned and litigated by entities that make nothing at all but litigation.

See what I mean? When the law overprotects, it kills innovation. That's what protection means. It means protection from innovation. Let's call a spade a spade.

Speaking of overprotection, how about the law allowing a company like Sony to sell products with a certain capability, and then after it takes people's money, letting it take away that capability -- and without a refund. Because that is what happened. Sony sold Playstation 3s with OtherOS capability, so people who like to use Linux could play with it or work with it. Then, because of a hack that allowed homebrew games to be played on Playstation 3, it announced a required "upgrade" if you wanted to play on the Playstation Network that took away that capability.

There is litigation pending on that, and Norway's Consumer Council has already criticized such behavior, but what happened here in the US? What happened was a brainiac kid figured out a way to restore that capability, and he's now being sued into the ground at this very moment by Sony, and the law is all on its side, helping Sony destroy this kid's reputation, his career, his work.

Well, it's a choice. But this kid is into research. He's the guy who figured out how to jailbreak the iPhone when no one else could. And the Library of Congress recently decided [PDF] that it was allowed, making an exception for jailbreaking phones. They didn't do it to encourage innovation, though, but because there are practical reasons why you might need to do it. But Hotz has stated that he thought his work on OtherOS was allowed. He has categorically stated he wasn't trying to enable piracy.

Here's something wonderfully innovative that OtherOS on a Playstation made possible before Sony shut it down:

The US’ Air Force Research Laboratory (AFRL) recently unveiled a supercomputer made out of 1,760 PlayStation 3 consoles. (They used older PS3s instead of PS3 Slims due to the Slims’ lack of Linux support; looks like that wasn’t just a fringe Slashdot-type issue after all.) Dubbed the Condor Cluster, the Air Force’s new computer has some serious specs — 500 TeraFLOPS, with 168 separate GPUs and 84 coordinating servers.

According to the Air Force, at $2 million, the system costs only five to ten percent as much as a comparable system made from separate components, in addition to consuming one-tenth the energy.

Innovation. Yes. And can you think of other uses for supercomputers that can be strung together like this? I can. But no more. Can't be done legally.

The hammer is always there, ready to hit innovators on the noggin. It's a serious issue. But what are companies supposed to do about piracy? There are malicious folks out there. They have to do something. For example, Sony has legitimate concerns about how to protect gaming, so that when folks show up to play games on their Playstation 3s, cheaters can't take advantage.

Here's an example of what one successful company, Google, does about hackers -- it puts them to work and pays them to tell them what to fix:

Last year, after two full days of hacking, only one web browser emerged from Pwn2Own unscathed: Google Chrome. IE8, Safari 4, Firefox 3, and even Safari on iOS actually all fell after just one day, but no one could seem to penetrate Chrome. In fact, despite a $10,000 bounty to crack their “sandbox”, no one even tried, likely figuring it was futile. And so this year, Pwn2Own wasn’t even going to invite Chrome back. Then Google stepped in with wads of cash.
You mean Google is asking to be hacked? Of course. Don't you want to know where the vulnerabilities are so you can fix them?
Specifically, Google worked with the conference to come up with rules for hacking the code found in Chromium (the open source browser on which Chrome is based). On day one, if anyone is able get nail a working exploit of Chrome (again, cracking the sandbox), Google will pay them $20,000. On day two and three, the same $20,000 will be paid out for “bugs in the kernel, device drivers, system libraries, etc,” but Google and the conference will split the cost of that reward (since Google says it cares more about the first variety).

It says a lot that Chrome was the one browser not hacked last year. It says even more than this year they’re sponsoring their own participation and doubling the reward. But it’s standard business now for Google to dish out cash rewards for people who find issues with their browser. And it’s a really smart idea.

Indeed. And it's so much cheaper than suing someone for bypassing your security, when you could strengthen it instead. Sometimes the hacker community offers to show companies how to fix their vulnerabilities. You know what happens sometimes? They get sued.

George Hotz offered to show Sony how to fix its security, and they used it to accuse him [PDF] of hacking to angle for a job with Sony (see footnote 1). He says he wasn't and I believe him. Some people just like to solve difficult computer puzzles with their brains. Maybe you enjoy crossword puzzles? Or you like to do math problems? Or you like to mod your car? It's in that same area of fun, just much harder and more complex. If the country wants to encourage innovation, couldn't it view Hotz as a national treasure in the rough and give him something to do that will result in more jobs and a healthier economy? And do you not see that someone like this could be useful in strengthening the US's cybersecurity? Some things are just obvious.

So, while I'm not a political person and I'm not a policy person -- nor do I have such ambitions -- and I surely don't know how to solve the tension between locking down everybody and letting us all roam free in a fertile field of technological possibilities, I'm trying to answer the question asked -- what is blocking innovation in the US -- and the answer is that all the energy has been going into locking everything down, with the law tilting away from users and innovation, and that's not creating a fertile field for innovation.


The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws | 325 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Corrections here.
Authored by: Erwan on Friday, February 11 2011 @ 02:30 PM EST
If any...


[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 02:30 PM EST
Agree with that. It seems to me tha the current patent and copyright systems are
used by established businesses to bloc, try to block or delay any real
competition and advancement. Result:- innovation is handed to overseas

[ Reply to This | # ]

News Picks here.
Authored by: Erwan on Friday, February 11 2011 @ 02:30 PM EST
Please, quote the article's title.


[ Reply to This | # ]

Comes exhibits.
Authored by: Erwan on Friday, February 11 2011 @ 02:31 PM EST
Thank you for helping Groklaw to complete its collection.


[ Reply to This | # ]

OT, the Off Topic thread
Authored by: Erwan on Friday, February 11 2011 @ 02:32 PM EST
As usual.


[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Erwan on Friday, February 11 2011 @ 02:36 PM EST
Luckily, IPv6 will fix the shortcomings.


[ Reply to This | # ]

Authored by: Anonymous on Friday, February 11 2011 @ 02:41 PM EST
Innovation often starts in the minds of very bright young people. Their youth
gives them the freedom to think new ways, their intelligence gives them the
ability to achieve new things. George Hotz and his peers are, to a large
extent, the drivers of innovation. Where did Google come from? Facebook?

For a country to be innovative it needs to support and nourish this innovation,
not beat it down with armies of lawyers.

[ Reply to This | # ]

I'm Impressed
Authored by: Anonymous on Friday, February 11 2011 @ 02:46 PM EST
PJ, This article ranks up there with the best you've written. Thank you.

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 03:29 PM EST
I hope you are sending this in.


[ Reply to This | # ]

The Gridlock Economy
Authored by: tz on Friday, February 11 2011 @ 03:34 PM EST
This is actually treated in detail (though not specifically to
software/hardware) in a recent book:

"... 50 patent owners are blocking a major drug maker from creating a
cancer cure. Why won't they get out of the way? 90% of our broadcast spectrum
sits idle while American cell phone service lags far behind Japan's and Korea's.
Why are we wasting our airwaves? ..."

[ Reply to This | # ]

See also: Against Intellectual Monopoly
Authored by: alansz on Friday, February 11 2011 @ 03:37 PM EST
Another book you might enjoy that makes this argument effectively: Against Intellectual Monopoly [amazon link].

[ Reply to This | # ]

Authored by: Anonymous on Friday, February 11 2011 @ 03:37 PM EST I gave them a link to this article as it sums up the points far better than I ever could.

[ Reply to This | # ]

Don't forget UTICA and EULAs - ought Pystar be able to innovate?
Authored by: tz on Friday, February 11 2011 @ 03:53 PM EST
Here is the problem if we ban copyright entirely. It won't make the even more
restrictive EULAs go away. Mac OS X is copyrighted. But you can't get it
unless you agree to the EULA that says "Apple approved hardware only".
The latter has NOTHING to do with copyright, patents or IP.

This is where I tend to get no response from the people who go to lengths to
demonstrate that no IP laws ought to exist at all.

My point is that they would be replaced with an even worse gridlock of NDAs,
EULAs, cross-licensing agreements, and other things that would return us to the
Medieval guild system.

Add heavy crypto, lock chips, fingerprint scanners on your media player. It can
become a nightmare.

The original reason for patents was so inventors would PUBLISH and OPEN their
ideas - in exchange for a term of monopoly.

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 03:55 PM EST
I guess I'm somewhat of a cynic on this. Regarldless of
what the President tries to do, he must be able to get
something useful past, and out of, Congress. You can be
sure that no matter how Congress paints is actions, they
are still owned by the most weathy. And, the most weathy
are exactly the people who do not want significant
innovation to happen unless they can control it.

I truly wish our President luck on this, I truly do. But,
I really do not expect anything that I might hope for. I
might end up being surprised, but I doubt it.

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 04:04 PM EST
Honestly I don't think the governments reluctance to disallow software
patents is just about propping up obsolete business models. One thing our
founders were very specific about was that no one should have their property
taken from them without due process, and like it or not.. under our current
system.. software patents are property.

They have value and can be bought and sold just like real estate or a car.
Companies have spent a lot of money over the years purchasing patents. If
congress decided today that software could not be patented then all that wealth
currently owned by people would vanish. They no longer have that property.

Personally, I would like to see patents, all patents, restricted back in
duration. I'd like to see software patents restricted to 5 years from date of
filing (due to the rapid pace of change in the software industry) and other
patents restricted to 10 years.

Boojum the brown bunny

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 04:16 PM EST
Pretty much here's the problem - engineering, science, innovation, became a
slave of capitalism. To be an engineer, a scientist, an inventor, is second rate
compared to a banker, a lawyer, ... America evolved to a stage where you did
better being a parasite of abundant innovation, of abundant wealth generation,
and America hasn't figured out how to evolve beyond that point. I am sorry, I
don't have an answer, I think nobody does ... I hope America will, in time.

[ Reply to This | # ]

An Embedded Example
Authored by: greed on Friday, February 11 2011 @ 04:34 PM EST

Here's an example of proprietary behaviour getting in the way of innovation. It's not so much about the laws in this case, but more the type of lock-down control such laws afford.

Some friends were wanting to do a prototype of a device. (I can't go into too many details due to the NDA.) It needed, at a minimum, to be able to perform 2-way communication with a host computer (wired is fine), and to perform 2-way wireless communication with other devices. It also needed the usual complement of environment sensors you find in smartphones: accelerometers and magnetometers, for both XYZ and RPY (Roll-Pitch-Yaw) sensing. (Which make up the "six" in Sony's PS3 Sixaxis controller, and which are completed by adding MotionPlus to a Nintendo Wiimote.) And a collection of I/O lines, and maybe some audio.

So, we found these gadgets called "motes" which seemed to be dream devices. They had the accelerometers built-in, radio comms built-in, USB support built-in, and a microcontroller to run it all.

And the really great thing is, they used VisualStudio .NET Micro Edition so that we could get coders who already knew how to program up to speed really quickly. (Yes, that line is sarcasm.)

(It is actually possible to use a Linux OS on these devices. But to do that, you need a full-fledged JTAG programmer, an auxiliary debug board, and a bunch of other stuff. None of that was needed for the .NET edition.)

These things aren't cheap, either, BTW. It's not like an Freeduino, where $26CDN and some soldering gets you started. We also needed to fill out this huge scary declaration that we wouldn't be sending stuff to Places The U.S. Government Things Are Bad. (Which is fine: this was the prototype, the actual final product wouldn't involve U.S. companies at all.)

So. First problem: It comes with a VisualStudio .NET TRIAL version. You have to pony up for your very own VisualStudio .NET if you want to keep going after 30 days.

Second problem: .NET MicroEdition 2.5. Not 3, which was current at the time. Of course, Microsoft is very good at disavowing older versions of software, so finding the 2.5 SDK images is increasingly difficult. No-one can lawfully give anyone else a copy of one of those SDK images if Microsoft takes it off their website--even if MS themselves let you download it for free!

Third problem: .NET MicroEdition 2.5 doesn't have bi-directional communication over the USB port. (The bootloader can read from the PC. But once your program is running, the 'mote' can only send to the host, it can't receive from it.) The solution we were given? Use the Linux one instead. Were we offered a refund on the difference and an exchange of the parts? Along with the necessary JTAG hardware? Guess. You got it: No.

Fourth problem: Audio capture/playback. They came out with an audio board for the device. Doesn't work with .NET though, you need the Linux one.

So, OK, I'd rather have gotten the Linux device up front--except you couldn't program it from Linux because it needed proprietary hardware to run the JTAG programmer, and the ones that would work with these things were Windows only. (There are a bunch of hacks to do the JTAG stuff from any OS, but Officially, you need to do the JTAG stuff from Windows.)

We couldn't upgrade to .NET 3.0, because it didn't work with these devices (which are designed by Intel).

We couldn't fix .NET 2.5 because it's a closed, proprietary environment.

So we chucked all that, got a bunch of microcontrollers, breadboards and did it the old fashioned way.

Now let's compare the Arduino environment.

  • The Arduino SDK runs on Windows, Mac OS X and Linux.
  • The SDK is open source (though Java), so you can make any changes you like to it.
  • The Atmel MCUs that come with an Arduino are pre-programmed with a bootloader; but that's about it. There's no pre-programmed runtime library to worry about.
  • The Arduino community came up with a way to use a USB-serial bridge chip to drive the in-circuit serial programming system to write bootloaders.
  • ...which led to Arduino clone makers including a spot for a pin-header to connect those lines from the bridge to the ICSP header. (Such as the Solarbotics (yay Canada!) Freeduino-SB unit.)
  • The code to drive the ICSP is also open-source...
  • And you can, therefore, use an Arduino with USB to program the bootloader in a brand-new Atmel MCU just by plugging them in to your board, hook up the jumper leads, and running the downloader program on your host PC.
  • Of course, this is an open environment, right? You can also use an Arduino to drive the ICSP of any other MCU, only this time it's using the MCU on the Arduino, rather than the USB bridge. Belt and suspenders! Variety is good!
  • You can unplug the MCU from an Arduino board (assuming it's a socketed, pin-through hole device) and stick it in a breadboard. Or a wirewrap socket. Or a Vectorboard. Or whatever.
  • So, OK, for $26 all you get is a board with some jumper sockets and an LED you can blink. But it's got all the I/O lines that the mote has, so it's no big deal to add the sensors.
  • Only now, because everything is using GCC and other free and open tools, you can FIX anything about the software you don't like. You can replace any part of it. Say you don't like the Arduino bootloader: you don't have to use it. Write your own, find someone else's. And they don't just tell you that you can leave the ecosystem, they give you pointers on how to leave.

Sure, you can find enough people who've been able to do that to the Intel Motes. But by the time you do, you've spent far more money on the system, and you've been spending all this time working around issues in the closed ecosystem, rather than working on the project you set out to build.

(That's my general feeling any time I have to deal with Microsoft's stuff: I have to trick the computer into doing what I want, rather than what they think I should want.)

And, it turns out, when you advertise for ".NET MicroEdition" programmers, all you get are people who've done web pages in VisualBasic and SQL Server. (The "MicroEdition" bit gets lost.) That was a whole bunch of VERY fast interviews. And that was after rejecting 90% of the applications for failing to read the job posting.

So our rapid prototype took a year.

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The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 04:36 PM EST
I agree and well said. However I encourage you to take your analysis one step
further. Yes IP laws are a big block to innovation. But the deeper question
which must be addressed is how the US ended up with laws like these in the first
place. Namely a legislative and judicial system too easily influence by money.

The purpose of a legislature is to write good laws. If it is consistently
writing bad laws like the DMCA, then the legislature is broken and needs reform.

And it isn't just the legislature which is captured by money. Nobody legislated
for software patents. The judicial system cooked up that really bad idea all by
itself. Furthermore can anyone who has watched the SCO case question the need
for reform of the judiciary?

What about the executive branch? So how do you all think the institution of the
presidency is functioning these days?

Maybe what the US really needs is a constitutional convention.

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Competition: Old and New
Authored by: Anonymous on Friday, February 11 2011 @ 05:42 PM EST
As commented above: "Peer to peer, as one panelist points
out, makes it possible to offer esoteric music that is not
otherwise made available for cost reasons."

Has anyone considered that THIS IS PRECISELY THE PROBLEM?

The older media sees limited shelf space-- think of what it
takes to get shelf space at WalMart, for instance-- instead
of a transfinite amount of shelf space. They only see their
margins-- and shelf space-- being nibbled away by these
"niche players".

Leadership is about maximizing gains (making the pie bigger)
while Management concentrates on minimizing losses (and
drags in accountants in an effort to not end up with a
smaller slice of a fixed-size pie). It is all a matter of
seeing an opportunity when a challenge is placed before you.

It's been argued that lift capacity-- surface to orbit-- is
an "economy of scarcity". Music distribution is *also* an
economy of scarcity simply by not seeing that they DON'T
have to cut out new artists.

"Use the talents you possess for the woods would be silent
if no birds sang but the best." - Henry Jackson Van Dyke

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The White House isn't interested in PJ's answer
Authored by: Anonymous on Friday, February 11 2011 @ 07:07 PM EST
I really liked PJ's response. She hit the top key points in a very readable
discussion. Unfortunately, I don't think it is the kind of response the
White House is looking for. What they are after are rationalizations for
ACTRA type deals to reinforce existing IP laws and American institutions
like Microsoft.

PJ mentions Aneesh Chopra - the same self-confessed champion of IP.
Sorry I don't have a link for that video.


Sent from my cell phone.

[ Reply to This | # ]

the answers come too slowly
Authored by: YurtGuppy on Friday, February 11 2011 @ 07:14 PM EST

I remember that it took quite a while to
sort out who had the patents to barbed wire.

Armstrong invented the types of radio we use today in the 'teens and again in
the '30s and he finally committed suicide in the 1950's while the suits were

It took until the 1970s to come to grips with who invented the first computers.

So it seems to me the speed of litigation could be improved.

just swimming round and round

[ Reply to This | # ]

IP Laws: That's a good start.
Authored by: ChrixOne on Friday, February 11 2011 @ 07:19 PM EST
There is really nothing to object to in PJ's original post.

But: There is so so
much more to the picture.

A runaway legal system.

An Empire that is going
bankrupt (and siphoning off capital needed for innovation while engaging in wars
all over and keeping troops in 3/4's of the worlds countries.)

A Federal
Reserve that has destroyed upwards of 95% of the dollar's value in the last 100

Crony capitalism run amok (think ADM/ethanol, Haliburton, armies of
defense contractors, Homeland Defense officials that just happen to own big
pieces of companies designated as 'winners' for certain projects - and we're
just warming up.)

Regulations that specify not merely what is to be done, but
HOW it is to be done (Think about catalytic converters and the competing
technologies that were available. Think passive restraint systems. Think

Let's call a constitutional convention and junk the Federal government.
It's been done before.

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The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 08:26 PM EST
You are almost correct, Groklaw.

Now let me give you the basal, primal reason why America cannot innovate - not in my words, but Gordon Gecko's:


[ Reply to This | # ]

This isn't cut and dried.
Authored by: Anonymous on Friday, February 11 2011 @ 10:22 PM EST

Why would someone spend years of his or her life perfecting an invention that he
or she has no exclusive rights to when they're done?

Let's just take a ridiculous example. I have an idea for an invention that
would safely and instantaneously transport me and my luggage from New York City
to L.A. But in order to perfect this I'm going to have to work on it for ten
years, while I beg, borrow and steal to survive until it's complete.

If I understand correctly what is being said is that after ten years of starving
and perfecting and living under a bridge my only option should be to let anyone
who wants to, take my invention from me and start manufacturing it? And to do
this, these other people, including multinational companies owe me absolutely
nothing for my part in this wonderful, new invention?

Well that sort of sucks. I think I'll get a job and see if I can use that ten
years to work my up into management at McDonald's instead.

Yes, the way it works now sucks. Microsoft patents the "idea" of
instantaneous transportation from New York City to L.A. and sues me for me
invention when I'm done. That's wrong.

But it's also wrong to say to Microsoft: "Hey, lookie there, someone just
invented instantaneous transportation between New York City to L.A. Why don't
you go snag it and make a gazzillion bucks for yourself. Hell there ain't no
way he can stop you. It's even legal."

As far as I can see that kills innovation too.

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The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Friday, February 11 2011 @ 10:40 PM EST
Another great example is the Wright Brothers and aircraft. we (the US) invented
it, and the Wright Brothers patented their wing warping technology. For the
next 2 decades, they spent huge amounts suing everyone. In the meantime, the
Europeans pressed ahead. The result was that when WWI occured, we were so far
behind (despite inventing the airplane) that we had to import designs from
Europe. Oh, and the Wright Brothers turned out not to make much money, because
they were too busy suing to actually be productive. Their company produced
their last airplane in 1916.

[ Reply to This | # ]

And Blackberry - $600 Million for an invalid patent
Authored by: pgmer6809 on Saturday, February 12 2011 @ 01:30 AM EST
Another case: Blackberry had to pay a patent troll $600 Million to stay in
business. Not to mention their legal fees. The patent was later ruled invalid.
What a drain. You think the companies in China and Taiwan have that sort of
overhead to contend with?
Imagine if the patent troll had gotten to them earlier before they had such a
successful business. That whole sector would never have happened, at least not
as a North American initiative.

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My Answer: IP Laws *Nice Reply PJ*
Authored by: SilverWave on Saturday, February 12 2011 @ 05:03 AM EST

RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

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Is Nokia OT, Newspick or On Topic?
Authored by: Ian Al on Saturday, February 12 2011 @ 06:10 AM EST
Bear with me on this one.

Summary, so far. All the mobile manufacturers are suing all the mobile
manufacturers for patent infringement. A lot of the suits are about the software
and not the hardware. (It's a summary, you might find one or two rare

Nokia have a big bundle of mobile patents.

Nokia have chosen Microsoft Phone 7 to make them more competitive.

If they had looked at the market dynamics for mobile phone OSs they would have
to discount using Apple's iOS. They need to avoid selecting an OS that forces a
large development effort on them, but they need a flexible, capable and
responsive OS and mobile environment. The correct choice is Android.

So, why go Microsoft? Is it all to do with software, mobile patents? If they
choose Android, then they have to make a patent promise that anyone using the
Linux kernel for any reason has a licence to any of their relevant software
patents. I suspect that it goes way beyond just the kernel.

If they choose Microsoft, they get licences to Microsoft patents as well as
their own, so they can protect themselves against patent attack. They also have
much reduced development costs compared to using Symbian.

Could it be that a famous European mobile company is about to be destroyed by
software patents that are only valid in America and Australia?

Ian Al
SCOG: Yes, they hit the ground. The lawyers are now taking them to the centre of
the Earth. The 'centre of the Earth' is irony.

[ Reply to This | # ]

Cheating? Professor, please! I'm just using all the input signals. [BINGING]
Authored by: SilverWave on Saturday, February 12 2011 @ 06:35 AM EST
Tech Comics: "A Geek Cheats?" Recently During the Exam

RMS: The 4 Freedoms
0 run the program for any purpose
1 study the source code and change it
2 make copies and distribute them
3 publish modified versions

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Saturday, February 12 2011 @ 10:58 AM EST
You are absolutely correct. And the reason the Government doesn't really care is
it exempts itself from those laws it expects others to obey. That's why the
Air-force could use the PS3's without worry. The easiest way to make the
Government care is to force them to obey their own laws - let them be sued for
IP violations, and I guarantee the law will change - till then, too many
Congressmen, Senators, and now ever the President are getting too much money
from those people stifling innovation and making money from laws designed to
prop up failed business models.

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Not just in this software and CE worlds
Authored by: dseligson on Saturday, February 12 2011 @ 01:29 PM EST
At the risk of stating the obvious, what PJ says here has broad applicability
outside software and consumer electronics. In the early days (like the first
30+ years) of the semiconductor industry, there was broad cross-licensing of
portfolios, and tons of innovation. By contrast, take a look at Organic Light
Emitting Diodes, where large portfolios owned by Kodak and Cambridge
Display Technology as well as smaller portfolios owned by Whomever were too
disjoint, leaving it more or less impossible for anyone to operate. OLEDs are
just coming on the market now, never mind little foot wettings a decade ago.
Also, in biotech, this kind of stuff goes on. Stanford has been innovative
here, by promoting non-exclusive licensing of IP, so fewer parties can block.
But, try getting funded to do something when you don't have exclusive
authority to operate.

not even a lowly paralegal

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Authored by: Anonymous on Saturday, February 12 2011 @ 01:34 PM EST
How does speed limit help innovation? People are scared to
drive faster than the speed limit and what innovation can
happen in this atmosphere of fear?

I'd suggest the author to try and innovate something
themselves. I promise, you will figure it out in no time - IP
laws let us, people who actually innovate instead of "sharing"
Britney Spears "music", to get paid. Simples.

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Saturday, February 12 2011 @ 07:21 PM EST
The real problem with patents is the exclusivity.

Historically the precursor of (western) patent law was called Statute of
Monopolies. At that time it was quite common for kings to reward their
subject with various monopolies. But monopolies have no place in free-
market democracies. In this sense patents are going against the basic
principles of modern societies.

Since we need inventions, patents should still be rewarded, but not with
exclusivity. Instead some kind of royalty system should be put in place, that
would grant appropriate compensation to inventors, but not limit others to
actually use the invention.

Just my two c


[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: ghost on Sunday, February 13 2011 @ 06:56 AM EST
"Speaking of overprotection, how about the law allowing a company like Sony to
sell products with a certain capability, and then after it takes people's money,
letting it take away that capability -- and without a refund. Because that is
what happened. Sony sold Playstation 3s with OtherOS capability, so people who
like to use Linux could play with it or work with it. Then, because of a hack
that allowed homebrew games to be played on Playstation 3, it announced a
required "upgrade" if you wanted to play on the Playstation Network that took
away that capability."

It's actually worse than that...
Sometimes, you rent a
blueray movie(and this is especially the Sony ones) or rent a game, and wham...
The thing notices that your OS on the PS3 isn't the latest one, and forces you
to upgrade the OS in order to play the movie or the game.

So, effectively, If
you want to continue using the PS3 as a games console and watching movies on it,
you are FORCED to upgrade the os, and to remove the other-OS option, if you want
to use any newer material.

I did use the PSN network pretty much from start,
while the Other-OS still was on the machine, and i DID have Linux installed on
the PS3, as i did use it for work, using the SPE's. Then, Sony decided it would
be a good idea to remove the other-os functionality, and all data on that
partition (as well as all data on the disk anyway).

Not only did the "upgrade"
remove to me, critical functionality which was a very specific reason for buying
the PS3, but it also removed all data as well as media on the disk.

The PS3
will be the last Sony product i will ever buy, and i am selling off the other
The single reason for keeping the PS3, is the blueray player.

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The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Waterman on Sunday, February 13 2011 @ 10:35 AM EST
How about the worry of the internet kill switch? If the President gets his way,
that would block all good ideas that don't get out some other way than the
internet whenever he felt there were troubles brewing. Example of that was seen
in the last week in Iran.

[ Reply to This | # ]

Those MIT Lectures again
Authored by: Anonymous on Sunday, February 13 2011 @ 05:26 PM EST
Referenced here a few days back was the MIT Open CourseWare 6.00 Introduction to Computer Science and Programming as an example explaining to beginners (e.g. lawyers) how software was math. I've just got thru Lecture Seven, including an Introduction to [computational] Efficiency. Professor Grimson explained [37 mins onwards] how as problems became more complex and handled larger data sets it was essential to maintain tidy coding practice, including re-use of code modules. He opined that you would be unlikely to find algorithms getting smarter at the same rate as problems got bigger. He mentioned a MIT graduate as an exception to that: Sanjay Ghemawat worked on Google's ability to find answers in under a second from ten billion pages. Then came the clincher:
So if you have a great idea, you know, talk to a patent attorney and get it locked away.

[ Reply to This | # ]

The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: Anonymous on Monday, February 14 2011 @ 09:21 AM EST
In my industry no one wants to make anything anymore because some corporation
will see it, recognize the good idea, and send it off to China where slave labor
will produce it far cheaper than we can. So what's the point anymore?

Corporations and China are playing fast and loose with the North American
economy and our leaders are willing let it happen. I remember a time when we
didn't do business with Communist countries. What happened? (corruption, I

I'm all for helping China and other countries experience their own industrial
revolution, but I'm seriously concerned about the wholesale dismantling of our
economy only to have it shipped to China. We're loosing entire segments of
production, and the know how to make those products, in this
buy-up-companies-and-ship-them-to-china mentality.

It'll catch up to them though. Killing the golden goose they are. Then eyes
are going to turn towards the rich and start wondering why the only pie being
ate is the one they took from working class.

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The White House Asks: What's Blocking Innovation in America? - My Answer: IP Laws
Authored by: rebentisch on Friday, February 18 2011 @ 04:44 AM EST
It is impossible to define innovation. But its characteristics appear to be the
Schumpeterian competition: creative destruction. With a legislative objective
focused on preservation it seems difficult to contribute to an innovation

[ Reply to This | # ]

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