Glyn Moody's Favorite Techdirt Posts Of The Week
from the favorites dept
One of the problems with a site like Techdirt is that there is so much good stuff appearing every day, it's quite hard to see the bigger picture, as post follows post in rapid succession. In looking back over the past week, I've tried to pull out some of the major themes that I've noticed.
One of the key ideas that Mike explores here is how intellectual monopolies like patents and copyright have drifted far from their original purpose, which was to provide an incentive to create new inventions and new works.
Patents, for example, are less a spur to innovation today, and more a way of blocking competitors from innovating in the same field. You could hardly wish for a better demonstration of that than the big story this week about Apple suing Samsung because it claimed the latter's Galaxy tablet looked too much like the iPad.
As a subsequent post listing the claimed infringements showed, these included things like "method and apparatus for displaying a window for a user interface," while elsewhere, Apple said that Samsung used a “similar rectangular design with rounded corners, similar black border and array of icons.”
When companies are claiming "rectangular design with rounded corners" as innovation that deserves a government-backed monopoly, you know the system is broken.
Needless to say, Samsung has fired back with its own lawsuit claiming that Apple infringed on its patents, thus ensuring that the patent thicket surrounding smartphones (and presumably tablets) becomes a little thicker. Interestingly, another Techdirt story indicated that even the ITC is getting fed up with the patent mess.
Sadly, Apple was not alone in abusing the patent system this week. Another major case saw Google being hit with a $5 million fine for infringing on a patent through its use of the Linux kernel. The big story here, of course, is that if the decision stands, many other users of GNU/Linux might also be liable.
This is all pretty ridiculous since the patent describes a basic and obvious programming technique that was probably in use for many years before the patent was filed -- I expect lawyers are busily assembling mountains of prior art right now. The deeper problem is that the USPTO allows patents on software at all.
Software routines consist of algorithms, which are just a series of mathematical and logical operations; they therefore represent pure knowledge, like any mathematical theorem. As such, they need to be excluded from patentable inventions, as is the case in Europe, for example (although there the waters have been muddied by the introduction of the vague concept of "computer-implemented inventions," which are sometimes patentable).
Just as patent law is increasingly used to extract money from competitors as a way for them to avoid litigation, rather than as a spur to further invention, so the other main intellectual monopoly, copyright, is being seen as a way of generating revenue through threats of legal action, not simply as an incentive to create something new.
Perhaps the best-known exponent of this approach is Righthaven, and the last week has seen a gratifying number of stories in which judges and the courts have slapped it down again and again and again. And as an added bonus, the same happened over in the UK, where ACS:Law was found to have "brought the legal profession into disrepute."
Despite this outbreak of good sense on both sides of the Atlantic, there were still plenty of other depressing stories of intellectual monopoly abuse. For example, this week we read about the Tolkien Estate forcing a summer camp to change its name, Summit Entertainment suing adoring fans who dared to tweet a few images from the forthcoming Twitlight instalment, and the UK Music Publishers' Association issuing a DMCA takedown to a public domain sheet music site (and then trying to get the takedown taken down....)
Against this background of patent thickets, suits, counter-suits and vague legal threats, a question that springs to mind is: how did we end up with in this ridiculous situation? A couple of recent posts went some way to offering an explanation, noting that often it is those who benefit the most from monopolies that get to write the laws granting them, and that even judges are being recruited from the ranks of the RIAA, which makes relying on the legal system to rein in abuses of intellectual monopolies problematic, to say the least.
One theme that constantly crops up on Techdirt is the hypocrisy of those calling for sterner enforcement of intellectual monopolies. Time and again we see that what they really mean is that they should be enforced to the hilt against the little people (you and me), but that important people like them shouldn't have to worry about such tiresome details.
A case in point was the Canadian Prime Minister, who was discovered to have used some video clips without licensing them properly. Hypocrisy on an even grander scale is to be seen in the US attitude to the Anti-Counterfeiting Trade Agreement, (ACTA). Apparently, the Obama administration believes that Congress and the courts will not be constrained in any way by ACTA: now imagine the howls of outrage from the RIAA and MPAA if any of the other countries taking part in the ACTA negotiations decided that they, too, could just ignore the result. The same asymmetry will probably apply to ACTA 2.0, aka the Trans Pacific Partnership Agreement, where the US will doubtless seek to impose binding obligations on everyone else but itself. Strange that.
But it's not just governments that can play the hypocrisy game. Here's Prince claiming that when someone covers your song, the original no longer exists...except, of course, when he does it. And then there's the MPAA VP, who asserts that "we must protect our culture," but isn't interested in protecting the kind fostered by the Creative Commons approach. So actually he wants to "protect" -- as in "enforce through that intellectual monopoly we call copyright" -- limitations on creativity, a rather different matter.
Finally, I should mention one other big story that came up on Techdirt in the last week, the realisation that the iPhone and iPad are recording your every move. It's still a little too early to come to any conclusions about whether Apple is to up to anything deeply nefarious here, and if other platforms like Android are doing something as bad, but I'm sure we'll be reading a lot more about this next week as the story unfolds.