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The View from the EU Patent Proponents & Grokster
Saturday, August 21 2004 @ 09:26 AM EDT

If you would like to see how a pro-software patent lobbyist in the EU battle thinks, here you go. I found it riveting, in that creepy way you feel when someone shows you their surgery scar on their chest or stomach or something.

His thinking being of a kind that is alien to me, it took me quite a while before I realized that my first impression was accurate, that his primary argument is that software patents should be allowed because some happy few can make buckets of money from them. He also sees no need to consider the authors of free and open source software, because they are not "in business". He doesn't at all address the opposing concern, except to dismissively mock those that raise it, that innovation and progress will be blocked by any such monopoly grant on what is, after all, just math. John Gray, a patent attorney with the Glasgow-based firm Fitzpatricks, is the author, and as you might imagine, he loves patents and wishes he could have them in the EU. I think it's worth reading, though, because you can't fight ideas you don't understand. I submit Mr. Gray's article as Exhibit A in support of that proposition.

Here is an example of his view of the directive and its opponents:

"There are no moves to set up a system similar to the US: the draft Directive is actually intended to reinforce the boundaries established by case law, and prevent any drift in a more liberal direction.

"The governments of member states have been trying, through the European Council and Commission, to consolidate and formalise the status quo in European patent law. But this effort has been frustrated by a small but highly organised and vocal lobby, based on a selective and romantic image of computer programmers all working alone on their own projects."

Ignoring the first point, which I don't believe is accurate, he does not consider the views of those "working alone on their own projects" as being worthy of consideration. However, I do. Here's why. Those programmers "working alone on their own projects" developed an operating system, Linux, and all the necessary applications to run freely on top of it, the GNU et al components, that is tidal waving over all the world's proprietary software. Their concerns, therefore, are worthy of consideration in the best interests of the public welfare, which obviously derives a benefit from vigorous innovation, the very thing the patent system is supposed to promote. I think you could argue that their concerns should trump those of the dying software model's proponents on that ground alone.

Think about it logically. The patent system was devised to induce inventors to reveal their creations, so the public could benefit from their inventions, in return for which the inventor was given a short-term monopoly, so as to earn back his costs of research and development. This was considered a fair trade, because presumably otherwise the inventors wouldn't explain how they worked their magic and would rely on trade secret protection instead. But with GNU/Linux, all the authors are telling the world: here are our inventions. Have at them. We like to share. Just share in return if you build on this work. There is no need to induce anyone to reveal anything in such a system. It's out there already. So the need for patents is gone in such an open environment. There is no quid pro quo, because nobody is hoarding anything. Patents only make sense, if they do, in a proprietary environment, where secrecy is the norm and there is a need to induce inventors to share knowledge.

Mr. Gray writes as if those "working alone on their own projects" aren't commercially relevant and thus can be ignored, or mocked. But Linux can also be big business, regardless of the way it is written or the reasons why. Should companies making a living from GNU/Linux, like IBM, be blocked from doing so by a system that threatens to kill FOSS? Is it the job of government to favor one type of business over a competing type? Ignoring that reality -- that Linux is big business -- is done at the peril of the world's economy. His proposal, therefore, in my view, is that the public's welfare and the economic benefits to those whose business model includes GNU/Linux software isn't as important as the economic benefits to certain large proprietary software corporate interests, who wish to have a government-granted monopoly that would destroy their competition. He would like a system that favors one form of business over another, in short, and of course, as usual, nobody on that side thinks the public's interest need be considered, since they tend to think that the public interest and business interests are one and the same. All of his analysis is based on positing that the old software business model will continue, which I don't believe is true:

"We often hear that we (patent attorneys, lawyers etc.) are in the pocket of the big companies, and this line is used extensively by the anti-software patent lobby to discredit anyone who takes a different view. But patents are one of the few tools by which small companies in particular have a chance to level the playing field. If you have a patent (albeit you must invest something to obtain and enforce it), you at least have something to make the big boys talk to you. They may not need to “buy your soul” to copy your ideas, but they may have no choice but to buy your patent. It baffles me why small software designers should seek so vehemently to talk themselves out of this form of protection.

"For serious business people, with innovative products or services that need long-term investment in development and marketing, to have any chance of success in the global market place, patents are a useful option, to safeguard the investment as much as possible. . . .

"Patent protection can be expensive. But too often patents are judged unaffordable simply because nobody included the costs in the initial business plan."

You can see that he has no clue how Linux was developed. There was no business plan. When it's guys coding for the fun of it or because they believe in freedom to modify and the scientific method of sharing information, there is no business in the sense he means it, so his suggestion to small businesses to "include the costs" of patents in your "initial business plan", is like Marie Antoinette allegedly saying, "Let them eat cake," when told the peasants had no bread to eat. The suggestion is impossible to implement and suggests it comes from someone lacking a comprehension of the actual problem.

I have a suggestion. Why not have patent laws exempt FOSS? If the proprietary software companies enjoy suing each other over patents right and left, I think we should let them go to their final end just that way. As long as the world follows IBM's lead and carves out a safe harbor for GNU/Linux, I see absolutely no reason why the two models can't coexist happily but separately, with all parties allowed to proceed according to their lights.

If, on the other hand, the purpose of the EU directive is so Microsoft can use patents to destroy Linux, then that shouldn't be allowed in the first place on antitrust grounds. But if that is not the purpose, what objection could there be? FOSS agrees not to use patents to sue anyone on the proprietary side and gives up the purported benefits of patent protection, and the proprietary side agrees not to sue FOSS vendors and developers over patents. No? Too simple?

When the Mickey Mouse extension to copyright law was being considered, I thought of a similar resolution that I still think would work: Let the corporations keep the big money-making copyrights, but let all the rest go into the public domain. Most copyrights aren't making money for anyone anyway, so why deplete and impoverish the public domain, which has been strip-mined into a cultural wilderness (I don't think Mickey Mouse lunchboxes count as culture), just so Disney can clasp its copyright on Mickey Mouse to its bosom and its wallet to time indefinite, even forever?

Culture matters too, not just Disney's bottom line, but rather than argue about it, why not set up a system whereby copyrights still generating a certain financial return at the end of a fixed time period can be renewed, and those not reaching that bar cannot? Corporate entities do have concerns that they consider valid, so why not give them what they feel they need, so long as they don't grab everything else in sight? You know, like in monster movies, where you throw food to the beast so it doesn't eat you.

Speaking of attempted overreaching, you don't want to miss reading the MGM v. Grokster decision. The US Court of Appeals for the Ninth Circuit has upheld the lower court's ruling that P2P companies like Grokster can't be held contributorily or vicariously liable for copyright infringements by users, soundly rejecting MGM's attempt to expand "exponentially the reach of the doctrines of contributory and vicarious copyright infringement". The court felt bound by the Sony Betamax decision, the one that lets you use your VCR to time shift. It's a truly clueful decision, one that demonstrates the process I keep telling you about, that it takes time for the courts to get up to speed on a new technology, but they do get there. This three-judge panel got there, and bear in mind it's the same court that ruled against Napster. I think they must have read Larry Lessing's "Free Culture", particularly Chapter 4, "Pirates", judging by their opening and closing words, and they definitely made the effort to understand the tech enough to distinguish between Napster's central server and Grokster's lack of such:

"From the advent of the player piano, every new means of reproducing sound has struck a dissonant chord with musical copyright owners, often resulting in federal litigation. This appeal is the latest reprise of that recurring conflict, and one of a continuing series of lawsuits between the recording industry and distributors of file-sharing computer software. . . .

"In this case, the district court found it undisputed that the software distributed by each defendant was capable of substantial noninfringing uses. Grokster I, 259 F. Supp. 2d at 1035. A careful examination of the record indicates that there is no genuine issue of material fact as to noninfringing use. Indeed, the Software Distributors submitted numerous declarations by persons who permit their work to be distributed via the software, or who use the software to distribute public domain works. See id. One striking example provided by the Software Distributors is the popular band Wilco, whose record company had declined to release one of its albums on the basis that it had no commercial potential. Wilco repurchased the work from the record company and made the album available for free downloading, both from its own website and through the software user networks. The result sparked widespread interest and, as a result, Wilco received another recording contract. Other recording artists have debuted their works through the user networks. Indeed, the record indicates that thousands of other musical groups have authorized free distribution of their music through the internet. In addition to music, the software has been used to share thousands of public domain literary works made available through Project Gutenberg as well as historic public domain films released by the Prelinger Archive. In short, from the evidence presented, the district court quite correctly concluded that the software was capable of substantial noninfringing uses and, therefore, that the Sony-Betamax doctrine applied.

"[4] The Copyright Owners submitted no evidence that could contradict these declarations. Rather, the Copyright Owners argue that the evidence establishes that the vast majority of the software use is for copyright infringement. This argument misapprehends the Sony standard as construed in Napster I, which emphasized that in order for limitations imposed by Sony to apply, a product need only be capable of substantial noninfringing uses. . . .

"[6] In the context of this case, the software design is of great import. As we have discussed, the software at issue in Napster I and Napster II employed a centralized set of servers that maintained an index of available files. In contrast, under both StreamCast’s decentralized, Gnutella-type network and Grokster’s quasi-decentralized, supernode, KaZaa-type network, no central index is maintained. Indeed, at present, neither StreamCast nor Grokster maintains control over index files. As the district court observed, even if the Software Distributors “closed their doors and deactivated all computers within their control, users of their products could continue sharing files with little or no interruption.” Grokster I, 259 F. Supp. 2d at 1041. . . .

"[10] While Grokster and StreamCast in particular may seek to be the “next Napster,” Grokster I, 259 F. Supp. 2d at 1036, the peer-to-peer file-sharing technology at issue is not simply a tool engineered to get around the holdings of Napster I and Napster II. The technology has numerous other uses, significantly reducing the distribution costs of public domain and permissively shared art and speech, as well as reducing the centralized control of that distribution. Especially in light of the fact that liability for contributory copyright infringement does not require proof of any direct financial gain from the infringement, we decline to expand contributory copyright liability in the manner that the Copyright Owners request. . . .

"The Copyright Owners urge a re-examination of the law in the light of what they believe to be proper public policy, expanding exponentially the reach of the doctrines of contributory and vicarious copyright infringement. Not only would such a renovation conflict with binding precedent, it would be unwise. Doubtless, taking that step would satisfy the Copyright Owners’ immediate economic aims. However, it would also alter general copyright law in profound ways with unknown ultimate consequences outside the present context.

"Further, as we have observed, we live in a quicksilver technological environment with courts ill-suited to fix the flow of internet innovation. AT&T Corp. v. City of Portland, 216 F.3d 871, 876 (9th Cir. 1999). The introduction of new technology is always disruptive to old markets, and particularly to those copyright owners whose works are sold through wellestablished distribution mechanisms. Yet, history has shown that time and market forces often provide equilibrium in balancing interests, whether the new technology be a player piano, a copier, a tape recorder, a video recorder, a personal computer, a karaoke machine, or an MP3 player. Thus, it is prudent for courts to exercise caution before restructuring liability theories for the purpose of addressing specific market abuses, despite their apparent present magnitude. Indeed, the Supreme Court has admonished us to leave such matters to Congress. In Sony-Betamax, the Court spoke quite clearly about the role of Congress in applying copyright law to new technologies. As the Supreme Court stated in that case, “The direction of Art. I is that Congress shall have the power to promote the progress of science and the useful arts. When, as here, the Constitution is permissive, the sign of how far Congress has chosen to go can come only from Congress.” 464 U.S. at 456 (quoting Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530 (1972))."

Of course, the Hollywood gang are already pushing for a law in Congress, the INDUCE Act, that would specifically overturn Sony Betamax. INDUCE is being spearheaded by Utah's Senator Orrin Hatch, the father of SCO's attorney, Brent Hatch. The apple does not fall far from the tree.

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