Re: Curing the Problem of Software Patents, by Michael Risch

16. June, 2012

Michael Risch wrote a longer piece on software patents and why we should try to make software patents work: Curing the Problem of Software Patents

Here is my answer:

I think the main problem with the patent system isn’t the ideas behind but that some people have started to abuse it. And those who didn’t are being driven to join the brawl for no other reason than protect themselves.

You quoted “Software is hardware in every sense that matters for patents.” Let’s have a deeper look at that. Software is a formalized way to write recipes (as in cooking). Software development is a translation process (as in language interpreter). We take ideas from customers and turn them into detailed instructions to be executed by a moron. A human could do it but since it would be boring, we use a computer. Note that software isn’t mathematics – it’s language (as in English). It’s very limited (because the computer is so very dumb) but we’re more authors than mathematicians.

Now, my questions are:

  1. Can you patent the work of an online interpreter?
  2. How about the words that come out of her/his mouth?
  3. What about the words that she/he hears and translates?

My answers:

#1: No. The process of translating something is a craft. Crafts as such are not patentable.

#2: Since the interpreter doesn’t add anything of value to the input (they should stay true to what is given them), the output can’t be more or less than the input. It’s the input in another form but by itself, it doesn’t make the input more or less patentable.

#3 This leads to the question: Can you patent a recipe?

And the answer here is, sadly, yes. Which leads to the question: Can you patent any recipe?

No: The recipe has to be, well, “outstanding” in some way. Unfortunately, there is no universal standard what “outstanding” means. When I teach a newbie, they will think my methods are outstanding but they are just by relative comparison of what they know and what I know.

Since “outstanding” doesn’t seem to be a good tool to make a decision, what else do we have?

Damage. One of the roots of patent law is the idea to bring more justice to the world. It was invented for the specific purpose to protect the work of “helpless” inventors so they wouldn’t be ripped off all the time.

This makes sense if you, say, develop a new medicine. As of today, you need to spend around one billion dollars for a new medicine. Without patent law, it simply wouldn’t make sense for corporations to take the involved risks, so it makes sense to apply it here.

But software patents are in a completely different league. They cost $20’000 or less to produce and they can cause hundreds of billions of damage when they are used as a weapon – which is the sole and main purpose of software patents.

Since software patents are used solely to damage society as a whole (forcing companies to invest in them, costs of defending yourself against a lawsuit no matter if it’s justified or not, costs of canceling abusive patents, costs in lost revenue when you can’t sell your product because a competitor wants more market share), they need to be outlawed.

If you fail in this task, then no new computer related products will be sold in the USA by … well … 2013 because everyone will be suing everyone and all money will flow into courts and to patent lawyers. No more software development will happen because it’s just too expensive/dangerous. Maybe someone will find a patent to “display text remotely” and take down Google or the whole Internet (at least the part that runs in the USA).

The lawsuits between Apple and Samsung should be a warning shot. These only exist to give one company a bigger market share in a saturated market. Better product doesn’t count nor how “inventive” it is. It’s just the logical, inevitable conclusion what happens when all players follow the rules that we made.

Or Oracle vs. Google. Oracle came in demanding several billion dollars and got nothing. But if they had a different judge, the outcome could have been completely different. Is that what we want?

This seems to damage companies like Swype (see “An Example” in his post). But does it really?

First of all, someone could copy their idea. But customers would only buy the copy when it was better for most of them. Do we really want to protect something that most people think worse?

Copying an idea usually leads to a new, very similar but still different idea. The “thief” adds his own wisdom to it. We call that process “learning”. Isn’t that something that we should support?

If Swype can’t patent their idea, they can still make a product and sell it. If they fail, some money will be lost. But if they succeed, no other company can sue them for billions of dollars for no other reason than to slow them down. Isn’t that better than the other way around?

We say that the Internet Year is only three months. New ideas spring up so quickly by now that the old, sluggish patent system can never keep up. Do we want to slow down progress (might be a good idea) *and* feed the trolls? How much is an idea worth protecting if it’s outdated in 9 months?

How much more money will we make/safe if software patents are outlawed and all this money goes back into R&D?


The Copyright Failure

27. March, 2012

And another of my long list of copyright posts. Can’t let it rest for some reason.

Copyright failed. As Larry Lessig said in his TED talk: Every view in the digital age is a copy. Watch a DVD and the computer/box/whatever is going to make 5 to 100 (temporary) digital copies of the movie before it is displayed on the screen: In the laser pickup, in the buffer chips that connect the laser to the system, in memory to decode the video stream, in various post processing filters, in the buffer chips that transfer the signal to the TV set, and several copies in the TV set to further improve the picture.

Let me drive this home: In this day and age, you have to break the law to watch movies and listen to music because the law says: You must not make any copies. Not even one.

The message: Standard usage of movies and music (watching, listening) is illegal under today’s copyright law. Which means we’re all serial offenders.

Or the other way around: We’re breaking the law so often, that we have concluded it’s optional. An important lesson that we inherit to our kids.

Maybe we can attack this the other way around: Why is the content industry failing? Because they sell a product in a way nobody wants.

I love to watch movies, read books and listen to music. I just don’t want to too much pay for something that I can get in better quality, faster and for free. Why do I have to wait six months to see US TV series? Why do I have to watch commercials? Why do I have to buy the album when I want a single track? Why do I have to buy the music at all when I just want to listen to it? Why do I have to watch TV at certain times?

Because no one is selling me the service I want. It’s not impossible. The “pirates” have made all this possible and for free, too. It’s just that the content industry has strangled itself too many contracts.

How is their mess our fault?

You want our money? Change.

Not convinced? Watch this: Rob Reid: The $8 billion iPod

7 Ways To Ruin A Technological Revolution

24. July, 2011

7 Ways To Ruin A Technological Revolution” is a Google Tech Talk by James Boyle in which he shows honest and sincere ways to stifle technological progress. And unlike him, I’m not ironic. A lot of stifling happens because we deem some things too dangerous. His 7 ways are:

  1. Ignore all empirical evidence and build our view of the world on hearsay
  2. Have a one-sided view of things. Always look at the costs and ignore the benefits. Be afraid of openness and prefer control.
  3. Focus more in outputs than on inputs. So protect the new book but ignore that most of the knowledge in any new book actually comes from existing books.
  4. Ridicule or ignore types of creativity that don’t fit the bill.
  5. Ditch all the technologies and openness we have because they kind of contradict points 1-4. It’s kind of silly saying openness just doesn’t work or that no one is ever going to publish anything without strict IP laws to keep people out when you have, say, Wikipedia. This means getting rid of the general purpose computer and network neutrality.
  6. Go international to keep small fry (like watch groups and NGOs) out of the game. Always harmonize “up”, that is towards tighter control. If one country has 25 years and another 75 years IP protection, the result is always 75 years for both (taking 50 years “away” from one country but that’s not a loss since that wasn’t a “right” before). Rights in such treaties are almost always mandatory, exceptions are optional (because more control is better, see #2).
  7. Make sure “critics fail to engage with the political process”. “It’s as if we have sought to turn self-marginalization to the level of an Olympic sport.” (0:26:14) Apathy also helps.

Some thoughts on #4 (after 0:18:00): Our society is built on sharing. Or did you pay back the $200’000 which your parents invested in raising you? Countless hours wasted playing with you as toddler which they could have spent at work instead. All the money spent on clothes that you didn’t want to wear anyway. The water polluted washing them which could have been used to grow food for more money.

“It’s commercial use if you get for free what you otherwise would have to pay for.” (0:20:16) If companies and IP policy makers had their say, you’d have to pay your girlfriend for a date just like for a prostitute. What else is date than a perfect business opportunity wasted because of “anti-capitalistic” hormones – or so some people seem to think. While we’re at it, let’s ask money for Christmas presents, too! Talk to a friend? It’s Cheap Friday, so it’s only $25 instead of $50/hr.

Such a view of the world ignores the benefits of these actions. When an author writes a new book, how much money goes back to the people who invented the written word? The printing press or the Internet? Who taught the author to write? Who sparked new ideas in his mind? So we have to be unjust somewhere but are we unjust in the right place?

Or maybe I’m wrong. At the end of his speech around 0:35:50 he says something interesting: “It is scary to me that the technologies that would enable the Google equivalent in the next technological cycle are being developed under the conditions that I have described. Because you would have to be an insane optimist to think that none of that is going to get screwed up by the processes that I described and I’m far from being an optimist.”

It’s interesting because we don’t know what will work and what will fail. Maybe this kind of resistance is necessary to separate good ideas from bad ones: Only a really good idea can overcome these obstacles. It has to be overwhelming enough to change the world. Since we can’t tell which idea should win, this might be the only way to weed the bad ones out.

Scary thought: Maybe superior technology like the Amiga didn’t change the world because it didn’t have what it takes – whatever that might be. All I can say from this point in time: We don’t have an Amiga on every desk, we have a PC on every desk. Steve Jobs knows his stuff but there is no Apple computer on every desk either. But there is an iPhone on (almost) every desk. Not a Windows phone. So the formula is Windows + PC == success, not Microsoft == success.

That said, not all is lost. I haven’t put my hands on an Amiga computer for more than a decade but I use the skills every day that I acquired with its beautiful OS. Amiga is dead, today’s hackers have Linux.

I think the good news is that the bad guys eventually fail because there is no limit to their greed. Eventually, they manage to upset even their most die hard supporters. Sony harassed Georg Hotz. Nothing happened. Sony lost 300 million customer records. The US government shows up to ask some serious questions. And the Zurich insurance refuses to cover the damages. Hm…

Interesting links:

Patent Trolls vs Common Sense 1:0 Again

11. June, 2011

Microsoft failed in court to relax the rules under which existing IT patents can be challenged. A great loss for everyone, even those who like the status quo.

Remember: i4i (is that “eye for an eye”?) owns patent 5,787,449: “A system and method for the separate manipulation of the architecture and content of a document, particularly for data representation and transformations.”

While the first sentence screams XML, it’s actually about a way to save additional data along with an XML document. Microsoft Word allows you to include any other file in the document, hence they violate the patent. Here is a good analysis.

This doesn’t mean anyone using XML is now prone to a lawsuit by i4i, but it’s still bad news. Why?

The parent was granted in 1998. In the very same year, the XML 1.0 standard was created (see here). This is just an example but patents are filed when the world starts to explore the very same field, obviously. We haven’t seen patents for combustion engines in 1603. And no patent office is going to accept patents for intergalactic FTL drives today.

Patents are filed to protect the investments of big companies. The pharmaceutical industry has to spend many million dollars to create a new medicine. Everything else has already been invents, so only the complex == expensive stuff is left. On this scale, it makes sense to generate billions in revenue since that’s about only one to ten thousand times what you invested. And you make that over many years.

IT is different. While the idea to store additional information along with a document might have been novel in 1998, it’s completely obvious today. The investment of i4i was probably on the scale of a few thousand dollars. Now, they made $290 million just by suing Microsoft.

My gut feeling is that they abuse the system. Pharmaceutical companies take great risks, i4i didn’t. i4i doesn’t sue everyone, they sue the big money. It’s perfectly legal. But is it right?

Here in Germany, we have the term of “Rechtsfrieden” which means “peace of law.” People believe and follow the law because it appears to be just. Violating the peace of law means that someone uses perfectly legal ways to harass someone. Think of a lawyer who got dumped by his girlfriend and now uses all the tiny transgressions we all do to turn her live into hell. She parks where she shouldn’t, he send a photo to the police. She drives a bit too fast, another fine. Talking with her mobile on the wheel. Telling people that she is a serial offender but no details, lest he could get into trouble. This behavior creates the impression on other people that the law can easily be used against them. The trust that the law needs to be efficient is undermined.

From my point of view, patent trolls violate the peace of law. They invest little and try to milk society. The damage is much bigger than the $290 million fine. M$ had to withdraw an entire production of Office products, they had to pay a fortune in lawyer fees, and now every software company using a similar technology is under even more stress than before: i4i just got the money to drive anyone out of business. Because today, almost every software company uses technology like that. It’s so obvious today that no one would even think that there might be a patent for it.

And that’s the fundamental problems around software patents: They don’t make sense on any level.

Other industries have to invest millions of dollars in equipment and thousands of people (in the field, lab workers, people building lab equipment, test subjects) and procedures (clinical or other tests, legal reviews, patent research) to develop new products. Actually producing those products is expensive: You need workers, factories, raw material. And then, you haven’t sold a single unit. So you need transportation, packaging, hygiene environments, storage, advertising, sales points, etc.

To bring a new medicine to market, you need one billion dollars today. That is a huge risk. While I don’t like patents, I can understand that you want all the protection you can get in this case.

Software patents are dirt cheap by comparison. Usually, it takes just one person to have the idea. You need equipment that costs a couple of thousand dollars. Even 1998, computers usually cost less than $10’000. Developing the idea to a real patent is in the same range. You don’t need expensive equipment for that, just determination and a good patent lawyer.

Basically, there is no risk in developing a software patent. If the patent is found void, you also don’t lose much. It doesn’t mean your investment is lost. It doesn’t mean your multi-million dollar factory is ripe for an unexpected amortization. It doesn’t bankrupt you.

On the other hand, a software patent is a great tool to harm society, 100% legal. That $290 million isn’t coming out of the pockets of Microsoft, it’s ultimately coming out of the pockets of their customers. The fine doesn’t benefit society, it goes to the owners of i4i. And rich people don’t share.

The judges in the M$ vs. i4i case argued that the government should set the rules. Which sounds good. But apparently, the members of parliament also don’t understand that we have two completely different sets of problems. When biochemical companies argue pro patents, they ignore the fact that one size only fits all when everyone is the same size.

Conclusion: In my opinion, i4i legally “swiped” $290 million from society. Which is a perfect argument to treat software patents completely different from normal patents.

Why Software Patents Are Illegal

28. April, 2011

Patents on machines are legal, patents on speech are not. You can’t patent Obama’s latest public appearance or a mathematical proof. Those things are covered by copyright laws (and followers of this blog know that those are flawed as well).

So why are software patents illegal? They are recipes which tell the computer what to do. You can’t patent recipes. Therefore, it should be impossible to file a patent on software.

The long version is here: 1 + 1 (pat. pending) — Mathematics, Software and Free Speech (Groklaw). The article explains why lawyers often get confused by computer terms, how this is bad and how to stop them.

So Nie

28. February, 2011

“So Nie” (pronounced like “Sony”) is German and means “never like that.” On February, 23rd, Sony ordered a raid on Alexander ‘graf_chokolo‘ Egorenkov. Alex found the master keys used in the PS3‘s broken encryption system. Epic fail for the guys who wrote the code.

Instead of simply fixing their mistake with a patch (like the other console vendors did), Sony now tries to bully the world into submission. By setting the value of the court case to 1 Million Euros, they make it deliberately impossible for Alex to defend himself in court – just to hire a lawyer would cost € 30’000.

If he could get a good one. Otherwise, it’s just wasted money because a good (expensive) lawyer can get you in jail for damaging the fists of the plaintiff with your face. Repeatedly.

Alex’ response? “If you want me to stop then you should just kill me[…]

So what’s in it for you? For starters, stop buying anything from Sony, the company which really likes to abuse their customers.

If you can’t live without your games, stop buying new games, only second hand ones. They are cheaper, as good as the new ones, you don’t need to be online to play them. And it’s an easy and efficient way to tell Sony how you feel about their behavior.

Unplug your PS3 and play only offline. If a game stops working, return it. That costs them more than you.

Spread the word. Nothing is as expensive as a bad reputation.

Read geohot’s new blog; he’ll announce donation requests there to pay for his lawyers.

The world is the place we make it or the place Sony makes it.

[Update] You might want to read this, too: What’s Happening in the Class Action Against Sony About Removing OtherOS? I really like this quote: “And the plaintiffs have been following the SCEA v. Hotz case, and they noticed what they believe are contradictions between what Sony says in that case and what it says in this one.” Oops.

At last: Filing patents is been patented!

11. January, 2011

Just before the end of last year, a gaping hole has been closed in the struggle to turn the world in a lawyer’s playground: IBM has filed a patent that patents filing patents.

Whenever you apply for a new patent, you’ll have to pay royalties to IBM! It’s like the invention of the self-printing money! Well done! 🙂


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