The supreme court handed down a unanimous ruling in Grokster v. MGM. I’ll be talking more about it later, once I read and digest everything (I’ll make it part of the IP Part III post I’ve been promising.) But beforehand, here’s BoingBoing’s post on varied coverage.
From the category archives:
Intellectual Property
OK, first, I lied. I’m going to talk about patents before I talk about copyright and copyleft of creative content.
As I said in part I of this series on intellectual property, I am not a purist about open source software, and you’ll find out in part III, I’m not a purist about copyright and copyleft of creative content, either. However, when it comes to patents, I am a purist. In my opinion, patents are wrong, and even more so in their current implementations. Patents and patent law is complicated, and many people think that it’s not relevant to their lives. Nothing could be farther from the truth.
Patents on things like business methods and software methodology are at the very least annyoing, and limit creativity and innovation. Patents on drugs, living things and food crops are, plain and simply, evil. And as far as I am concerned, the baby needs to be thrown out with the bathwater.
What do I mean by evil? Well, one of these days, on my ministry blog, I’ll have a post on what I think about evil – it’s outside of the scope here. Suffice it to say that patents on those things create situations where wealthy people and corporations hold, in the palm of their hands, the lives and well beings of the most vulnerable beings on our planet, and, in fact, profit from suffering. I can’t possibly think of another word to describe that besides evil.
Patents have an interesting history, one that I have only a passing familiarity with. You can find out a lot more in the list of links at the bottom of this article. Patents are supposed to provide protection for the inventors of a product, method or process, so that these cannot be used by others without being compensated. Now at first, this sounds pretty reasonable. And, in fact, for a long while, it worked fairly well, and protected inventors from being taken advantage of by big companies that could manufacture a product and bring it to market in a way than an individual inventor could not.
But something happened on the way to the forum. Individual inventors went the way of the dodo, technology changed the face of products and processes, corporations started filing patents on things they hadn’t actually invented, and the patent office went off the deep end (or, rather, caved in to corporate pressure.)
Let me first start with software and business method patents – things I know a little bit about, and patents that are more annoying than evil. As a generic web developer, I am in violation of several patents, just by doing what I do. It’s a good thing that the owners of these patents haven’t yet decided to go after the likes of me, and that I don’t worry too much about it. If I did worry about it, or if they did come after us web developers, it would absolutely stifle creativity and innovation in software and the internet. I certainly couldn’t afford to pay the fees they would want me to pay.
Let me give one example, frames. This is pretty old news. SBC communications owns the patent on frames, which is a very common method used in websites. In fact, it’s quite likely you visited a site recently that used frames. They’ve tried to enforce their patent, and demand fees from web site owners. Now frames is a standard HTML element, that has been used for years (it was a Netscape specific extension to HTML 2.0, and became part of the HTML 3.2 standard – which was released in 1997.) I don’t know what has finally happened to this, but it is a clear example of a problematic patent. Another example is that Jeff Bezos, founder of Amazon.com, and owner of the famous "one click shopping" patent, also now owns a patent on "Information exchange between users of different web pages." This means that, if he wanted to, he could ask for fees for websites (like this one) that use the trackback technology. Ouch.
Luckily, some in the nonprofit sector are getting hip to the issues involved in software and business method patents, and see how they could be detrimental to the sector. Yay for NIA.
It’s pretty simple to see how software and business method patents stifle innovation, communication, and ultimately don’t benefit the common good. No, not evil, but certainly problematic.
Let’s talk about the really bad patents. First, drugs. Drug patents are designed to allow drug companies time to recoup their R&D costs, by giving them exclusive right to the drug for a certain number of years. Right now, drug companies have 20 years from the invention of a drug, to exclusive use of that drug, before generic companies can begin manufacturing that drug.
I could go on for days about the fallacies behind drug company R&D (they spend more on marketing than they do on R&D, and a lot of drug R&D is funded by the government and private foundations.) But what happens is that drug companies get to set any price for a drug during the time that they have exclusive rights to manufacture it. This is why, for example, South Africa had been violating the drug patents for AIDS drugs, so that it could get drugs to people who need them (luckily, the drug companies relented in their fight.)
Amazingly enough, drug companies and others are fighting to extend that time. Given the current realities of our health care system, the more years that a life-saving or quality-of-life-improving drug can be exclusively marketed by a drug company, means the more people who will be choosing between living (or feeling better) and eating or paying rent. And this means that the drug companies are profiting from their suffering. Now, you might think, the way they talk about this, that drug companies are hurting. Nothing could be further from the truth. The drug industry is the most profitable industry there is.
Now, on to patents of living things. Ever heard of the OncoMouse? It is a mouse that was developed to study cancer, and the first animal to be patented. (The first living organism to be patented was a bacterium.) There are a number of problems with this patent. First, it will stifle research on cancer, since the owners of the mouse can charge fees for research using it. Second, is the basic bioethical issue of the ownership of a type of living animal, however it might have been developed. Third is the animal rights arguments – these mice live to get cancer and die. (I feel torn about the animal rights arguments, but I wanted to raise them.) These all are good reasons to reject patents on research organisms.
An extension of the precident for patenting organisms, is the process of patenting genetically engineered food crops. These crops have been genetically modified for certain characteristics (depending on the type of food.) The genetic engineering is problematic in the first place (as you can read in that link above,) and the addition of patents takes control of the use of food crops out of the hands of farmers, and into the hands of large corporations. In third world countries, this risks disaster. All to make money for people who don’t need it.
As someone who is deeply concerned about the ways we treat each other on this little spinning ball we’re sitting on, the current state of patents, and the kinds of negative affects it has on people, suggests to me at least a major overhaul, if not a wholesale abandonment of the patent system. I wished that more organizations, whether secular or religious, would understand and embrace these issues, as complicated and esoteric as they may seem.
One thing I didn’t say about open source software in part I, is that software has become an essential part of the matrix in which we live our lives and connections with each other. Who controls that software has an effect on that matrix. We all eat, many of us take drugs, and benefit from scientific research. Who controls those things has an effect on our lives, and it’s time we understood this.
Links:
One thing I haven’t yet written much about in my blog is intellectual property issues. I do, in fact care deeply, and think frequently about them.
Part of my interest in intellectual property issues (the whole range, from patents, to copyright) stems from my interest and fascination with the law. Part of it comes from my interest and knowledge about technology, and how technology has, for many reasons, changed the equations about intellectual property, and made the whole set of issues quite a bit more complex than they used to be. And lastly (but far from least), my interest in intellectual property issues comes from my interest in the common benefit, collective creativity, and common good of all human beings.
In this post, I’ll start with open source software, it’s position in the intellectual property realm, and why I think supporting and using open source software is so important. Part II will focus on copyright and copyleft, and new ways of distributing creative content (writing, music, art, video, etc.) and the benefits I think we’ll gain from it. Part III will focus on patents, and why I think they are evil (really, I do.)
Many of you know what open source software is already. For those who don’t there is a great wikipedia article on it (and, why not, I wrote a primer on it for the nonprofit sector.) What open source software introduced into the world is the idea that you can make software better by having it open to scrutiny, collaboratively developed, and freely accessible. What it has also showed, over time, is that it can be a more economical way for people to take advantage of technology.
Microsoft, and other traditional software makers, make money from packaging and distributing their software in a form that is unreadable, unscrutinizable, and costly. They have elaborate EULAs (end user license agreements) which limit the ways that end users can use their software (you mean you thought you owned that copy of Microsoft Office? Sorry to tell you, you don’t.) The money traditional software makers make on their products goes to two places: their investors, and back into more development (to make more money.)
Open source software makers (everyone from IBM and Red Hat, publicly traded corporations, to individual software developers) primarily make their money by selling services and consulting that goes with the software they give away. You can always get the software free, but if you need or want support, it’s available at a fee. Some (especially Linux distributions) do actually sell their software packaged (but free versions are available). Some open source software is developed by non-profit organizations (the Mozilla Foundation, for example,) which get some funding from fundraising and grants.
There is plenty of evidence, now that open source software has been around for a while, that it is possible to make money at developing open source software. I doubt, honestly, that a new Microsoft will emerge from the open source field. But there are plenty of mortgages are being paid, families being fed, and retirements being funded.
And what happens to the code? In the case of traditional software vendors, the code stays secret, stays with them, and no one except them (or select partners) ever sees it. In the case of open source software, it stays in public view, downloadable, and modifyable by anyone with the expertise and interest.
I think it’s pretty obvious why this is more in the common good. Third world countries are getting on the open source bandwagon big time. Why? Because they can implement open source cheaply, using less expensive hardware. I’ve been saying that nonprofit organizations should do the same, much for the same reasons, as well as the additional reason that they support a system of software development that benefits the common good, which, for most nonprofits, is what they exist to do.
In some senses, the whole set of intellectual property issues right at this moment comes down to that one question: who will benefit? As we heap more and more dollars on people who already have more than enough, we are also putting in place more and more structures (patents, copyright extensions, regulations like DMCA) that keep the copyright holders in control (who, by and large are large and wealthy corporations) and then can limit access and use of the software available and keep prices high.
Lest you think I’m a purist – I’m actually not. I don’t think all closed-source software is evil, and I think that there is no reason that there can’t be a healthy mix of open source and closed-source software in the marketplace. Heck, this blog was written on a Macintosh (which, in some ways is an interesting mix – an open source core of BSD-Unix, with a closed-source GUI, and I’m using the open-source browser Firefox.) But many traditional software makers (unlike Apple, which seems to mostly feel fine coexisting with it) see open source software as a threat, and would like it to go away.
What’s most important, is that I do think that we should, as individuals and organizations, think carefully and make careful decisions about the software we use – right now, it has more impact than we might think.
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