US Supreme Court & Patents

Conspicuously missing during the John Roberts confirmation hearings was any discussion or questioning regarding Robert's views of intellectual property, yet this may be one of the most important issues examined during his tenure as Chief Justice. It is no small thing, then, that the AIPLA profiled Roberts as a member of the IP-maximalist camp, citing several key rulings which paint him as in favor of strong intellectual property rights weak freedoms to invent.

Why were there no questions regarding these important issues, from either side of the political aisle? Could it be that we live in a state where we have become so accustomed to strong IP monopolies that no one even questions these anymore? Could it be that all our elected officials, both Democrat and Republican, are IP-maximalists?

Today, Samuel Alito was nominated to the court. Will the Judiciary Panel side-step this issue once again? Don't we at least have the right to hear how these nominees feel about such important issues? Let your senators know how you feel.

DMCA Activity: Write to the Copyright Office

Great pointers at freeculture today on doing your part to alleviate some of the problems caused by the Digital Millenium Copyright Act. Do get involved.

Who Owns Your Images?

For a long time, people worried about using GIF images because the compression technique used to store them had been patented by Unisys. The Free Software Foundation even banned the use of GIFs on FSF and GNU websites, and encouraged others to do the same. If you examine the image of the gnu on that webpage, you'll notice that it is in a JPEG format.

All that's old is new again. A company called Forgent holds patent no. 4,698,672, which it claims covers JPEG images. They recently extracted a licensing deal from RIM, now claiming that they have earned over $100M in royalties for this patent. A lawsuit filed by Forgent against about 40 PC companies including Apple Computer, Dell, Hewlett-Packard and IBM is currently under way. They claim that about 1000 other companies also infringe their patent. Microsoft has filed for a declaratory judgement against Forgent, seeking to invalidate the patent.

So, the Internet's two most popular image formats, GIF and JPEG, are unsafe. That leaves PNG as the only somewhat-widely supported format to fall back on if you want to avoid patent encumberence. How long until a company finds a long-forgotten patent that covers some idea embodied in PNG, and decides to submarine that as well?

How Patents set the Industrial Revolution back by 30 Years

David K. Levine maintains an excellent website about Intellectual Monopolies and their dangers.

In particular, if you are interested in some very compelling arguments, see Boldrin and Levine's treatise Against Intellectual Monopoly. In the very first few pages, you'll learn how James Watt, considered by some to be the father of the Industrial Revolution, sabatoged said revolution through application of patent monopoly on the steam engine and improvements to it made by competitors.

In 1781, when the superior and independently designed Hornblower engine was put into production, Boulton and Watt went after him with the full force of the legal system. In contrast to Watt, who died a rich man, the inventor Jonathan Hornblower was not only forced to close shop, but found himself ruined and in jail.

Prior to the start of Watt’s commercial production in 1776, there were 130 steam engines in the U.K., most using the inefficient Newcomen design. By 1800, when Watt's patents expired, there were still only 1000 steam engines used in the U.K., of which only 321 were the superior Boulton and Watt engines, the rest being old Newcomen engines. The total horsepower of these engines was 10,000 at best. In 1815, fifteen years after the expiration of the Watt patents, it is estimated that 210,000 horsepower was installed in England alone. After the expiration of the patents in 1800, not only was there an explosion in the production of engines, but steam power finally came into its own as the driving force of the industrial revolution. In the next 30 years steam engines were modified and improved, and such crucial innovations as the steam train, the steamboat and the steam jenny all came into wide usage. Many of the new improvements, such as those of William Bull, Richard Trevithick, and Arthur Woolf, became available by 1804: although developed earlier these innovations were kept idle until the Boulton and Watt patent expired. None of these innovators wished to incur the same fate as Jonathan Hornblower.

There are a good number of other wonderful examples and a great theoretical analysis throughout. We'll likely return to some of these in future postings.

This was the first in a series of stories about seminal inventions hindered by patents. Read Part II or Part III.

The Wrong Kind of Patent Reform

After years of largely ignoring problems with the patent system, the mainstream press has recently been giving a bit of ink to reform legislation backed by Microsoft and a few other big technology corporations, namely the proposed Patent Reform Bill of 2005 and yet-unnamed legislation from Sen. Orrin Hatch, R-UT.

The proposed legislation makes several changes to how things are done, including moving from a first-to-invent model to a first-to-file model, providing a mechanism for challenging patents without going to court, and allowing patent cases to be heard in jurisdictions more friendly to the patent holder. As explained in today's Buffalo News these changes tip the balance of power further toward big corporations and severely disadvantage small and independent inventors.

Odd, isn't it? Independent inventors and small businesses have been complaining about inequality in the patent system for years, and no one in Washington has seemed to care. But as soon as Microsoft points out how difficult it is for them to defend themselves against patent infringement cases, our legislators start hopping. How do you feel about this? Let your representatives know.

XML patents threaten core Web technology

Scientigo, a small company in North Carolina thinks it owns XML (a fundamental internet technology for data representation and exchange that underlies most of the websites you know and love) and wants to start extracting royalties from XML's users.

What is the core of their claim? -- The idea that data can be self-defining. That's it. World-changing, no?

This isn't the first XML patent scare. Several months ago, a company called Commerce One went bankrupt and sold off all assets, including patents they had obtained while working with the W3C to standardize XML. It was feared at the time that a patent troll would obtain the portfolio and start doing a massive shake-down, much like Scientigo has planned. Bidding was frenzied, with Novell eventually defeating Intellectual Ventures LLC (Intellectual Ventures is considered by many to be one of the biggest patent trolls) at a price of $15.5 million dollars. Novell subsequently pledged to use the patents only defensively, saying that the money spent was simply a fee for continuing to do business using XML and open source software. In other words, a $15.5 million gift to the Internet ecosystem that has come to rely so heavily on this technology.

The irony? Scientigo's CEO says that Novell's acquisition of these patents is what inspired him to move in this direction. It will be interesting to see how this plays out in the coming months.

Update: The Open Invention Network has been formed, with the Commerce One patents as a starting point.

Striking Down Business Method Patents

FreeCulture is sponsoring Cereal Solidarity, an attempt to reform business method patents.

What are they upset about? You can read more at the site, but briefly, a cereal bar called "Bowls" opened up in Gainsville, Florida specializing in -- what else? -- selling cereal. All was going smoothly until Bowls was threatened with a cease and desist from another company, "Cereality", which claims to have patents pending on "displaying and mixing competitively branded food products" and adding "a third portion of liquid."

Now, this isn't the first absurd business method patent to come around. Amazon's one-click patent and Priceline's reverse auction patents come to mind. But freeculture's campaign against these silly monopolies is well organized. They have a petition to congress for you to sign and a number of other activities you can participate in. Get involved.

Public Domainalism

In A Politics of Intellectual Property: Environmentalism For the Net?, James Boyle draws an analogy between the environmentalist movement (a reaction against the rising power of private property and the erosion of the literal "Commons" through pollution, overuse, etc.) and the cyberpunk movement of the Internet (a reaction against the rising power of intellectual property stakeholders and the erosion of the public domain, fair use, patent thickets, etc.).

All analogies have flaws, and this one is not immune (likening real, physical property to ideas is troublesome). But the comparison of the two movements is appropriate and striking. Boyle calls for the formation of a political movement to advance the cause of the public domain, something that has already begun to happen with activities centered around the EFF and a few other groups such as copyfight and freeculture. But the ball has only begun rolling. Get involved.

Invention as a Fundamental Human Right

What separates us from the animals? That we have a sense of "self", that we use tools, that we speak language -- all have fallen as researchers have demonstrated that some animals do recognize the concept of "self", that crows use cars & roads as tools to smash nuts, that chimpanzees fashion crude sticks to fish for ants, that some birds can use very small vocabularies to communicate their desires to their handlers, and that apes can learn and proficiently use sign-language vocabularies stretching towards a hundred or more words.

The one difference that remains is that we create. We create things that never before existed, and on a whim can produce descriptions of fantastical things never before imagined. We spend the majority of our lives surrounded by our creations: walls, roofs, carpets, desks, televisions, kitchens, stores, roads, cars, and most of us labor in the work of creation daily -- even a janitorial worker produces, through his labor, a creation: a clean environment, a repaired (or re-created) facility, etc. If it can be argued that animals are capable of creation, the argument would have to admit that they have such a small capacity in this regard as to barely merit mention. While the magnificence of a spider's web can be breathtaking, it is the same web that the spider spins, over and over and over again.

We stand alone among creatures as the prolific creators and inventors on this planet.

Those with religious sensibilities almost universally recognize this; that one of Divinity's most defining and lasting attributes is that it created this world, and that an echo of this divine capability is reflected in us, in our ability to create.

Those with more secular sensibilities almost universally recognize this also; that nature's first law is to create and to reproduce, that evolution spins ever upward towards new creation, and that our world favors creatures who can survive by adaptation (learning/technology) over those who survive by innate instinct. Adaptation through learning and technology is inseperable from the ability to create, and no species has this capacity so much as ours.

Why, then, do we grant monopolies on creation under our current system? Why do we allow one person to use an idea to create new inventions, and disallow all others? Are these restrictions really necessary to promote innovation, or do they stifle us more than we realize?

The act of creating is an essential human right. It is a universal human faculty. As Frederic Bastiat wrote, "to separate a man from his faculties is to cause him to die."

Is our current Intellectual Property Regime killing us? We think so. What do you think?

A Brief History of Idea Monopoly

The ability we have, as humans, to invent and create, has been with us since time immemorial. We were inventing new things long before civilization and governments existed. We are, in fact, the creators of civilizations and governments. The right to create, then, is prior to law -- it is pre-government. It is providential. In other words, the right to create does not exist because governments authorize it, but because it is a part of each person.

For most of the world, this right to create was largely unrestricted until the 18th or 19th century. An individual could create at will, using any idea that they encountered or that occurred independently to them.

Sometime during the last 600 years, governments realized that revenue could be earned by granting exclusive monopolies for specific goods to single individuals -- taking away the right to create these goods from everyone else. No one knows exactly when or where this insidious idea first arose, but it appears to have taken an early foothold in England in the 15th century. It worked like this: a monopoly on a particular good was granted for a sum of money or as a favor. In exchange, the Crown agreed to exclude, by force, all others but the grantee from participating in creating that good. These were called patents. In many respects, they were an extension of other unjust monopolies granted by the Crown, such as exclusive monopolies to fish certain waterways, to hunt in certain forests, or to kill and eat certain animals -- monopolies that were almost universally only granted to nobility or well-heeled benefactors. In the case of 16th century England, patents were granted on manufacturing salt, soap, glass, knives, sailcloth -- things that people had first created many centuries (or even millenia) before, and that until the time of grant, could be made by anyone with the resources and knowledge to make them.

This is the little-known and seldom-told origin of patents. This is the legacy on which our current patent systems build.

We continue to propagate these systems of artificially-created monopolies, sponsored by the state and enforced by the state's arm. Along the way, the system has morphed into something entirely new: a mechanism for monopolizing not only physical products, but ideas themselves. The system has been reformed countless times to make it less unjust, by requiring that the patent grant cover something non-trivial, that it be original, etc. But none of these reforms solve the fundamental problem of patent systems, which is that they restrict fundamental human rights: the right to have and use ideas, the right to create.

The Intellectual Property Monopoly Regime

Thomas Jefferson wrote:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

What is the Idea Monopoly Regime, then? Joseph E. Stiglitz, who served on the Clinton Administration's Council of Economic Advisors, wrote:

An intellectual property regime rewards innovators by creating a temporary monopoly power, allowing them to charge far higher prices than they could if there were competition. In the process, ideas are disseminated and used less than they would be otherwise.

The economic rationale for intellectual property is that faster innovation offsets the enormous costs of such inefficiencies. But it has become increasingly clear that excessively strong or badly formulated intellectual property rights may actually impede innovation – and not just by increasing the price of research.

The Idea Monopoly Regime consists of all those entities that seek to tip the balance further in favor of monopoly control, further away from innovation and free dissemination of ideas. This is commonly referred to as IP-maximalism, and it strikes at the core of your right to create.

Why "Intellectual Property" is a Misnomer

The term "intellectual property" is troublesome. Real property in the physical world cannot be transferred or shared without diminishing the utility of the property to the original holder. So called "intellectual property," on the other hand, can be transferred easily to others or shared without damaging any utility to the original holder. For this reason and others, folks such as Richard Stallman suggest that it is best to make a firm decision not to speak or even think in terms of 'intellectual property'."

Here at Right to Create, we will sometimes use the term "Intellectual Monopoly" or "Idea Monopoly," both of which are more accurate descriptions of the common problems with abuses of copyright and patent systems, and will use the terms 'copyright' and 'patent' to discuss their particularities.