It's pretty common knowledge that Tim Berners-Lee is credited as the inventor of the World Wide Web, which we all know and love today. However, if you haven't ever done so, it's actually quite fun to read through his original proposal for the web, as a new way for managing information. Here's a snippet:

In providing a system for manipulating this sort of information, the hope would be to allow a pool of information to develop which could grow and evolve with the organisation and the projects it describes. For this to be possible, the method of storage must not place its own restraints on the information. This is why a "web" of notes with links (like references) between them is far more useful than a fixed hierarchical system. When describing a complex system, many people resort to diagrams with circles and arrows. Circles and arrows leave one free to describe the interrelationships between things in a way that tables, for example, do not. The system we need is like a diagram of circles and arrows, where circles and arrows can stand for anything.

We can call the circles nodes, and the arrows links. Suppose each node is like a small note, summary article, or comment. I'm not over concerned here with whether it has text or graphics or both. Ideally, it represents or describes one particular person or object

But perhaps even cooler, as pointed out to us by Mathew Ingram, is an image of the actual physical copy of the first version of this proposal that Berners-Lee gave his boss, Mike Sendall. At the top of the cover Sendall scribbled, "Vague, but exciting." Amusingly, one could argue that description still applies -- and, in fact, is part of the reason why the web has been so phenomenally successful. Its amazing openness may have been "vague" but it was also that vagueness and openness that not only made the web so exciting, but made it possible for the rest of the world to fill in details to make it do whatever people wanted.

We've seen it all too often: some companies are perhaps ahead of their time, and they fail in the marketplace, so they turn into patent trolls, making sure everyone who succeeds has to pay up. It's difficult to see how that promotes innovation in any way, as it appears to be rewarding failure in the marketplace, while punishing success. Either way, the latest company to go down this sad route is the former Openwave, which has sold off its remaining businesses, with the intent of being a full time patent troll, under the name Unwired Planet (the company's original name back in 1996 before it became Openwave -- one of a series of names it had, including Software.com, Phone.com and Libris).

Some of you may remember Openwave as a company that helped get WAP browsers on lots of phones, and sold services and WAP gateways back in the early days of the mobile internet. Of course, Openwave then failed to innovate, failed to keep up with the changing market, and became pretty obsolete. But rather than just go out of business, it's gone full-on patent troll. Amusingly, the company is pitching this as "a major milestone." Yes, it's a "milestone" that instead of just failing and shutting down, you're now going to shake down other more innovative companies.

CEO Mike Mulica said in the company's announcement that the sale to Marlin marked a "major milestone" in its new corporate strategy. Mulica has been a major driver of the patent initiative since he took his post last October.

"As we complete the sale of our product businesses, we will continue to focus on a multi-pronged strategy to realize the value of our unique patent portfolio," Mulica said.

The company already started down this road last year by suing both Apple and RIM -- but it sounds like such activities are going to expand.

International space races don't quite inspire the same awe or fear as they did in the 1960s. There are a bunch of countries still trying to launch rockets into orbit for various reasons, but there are also quite a few commercial and amateur organizations working on space-worthy rockets. Here are just a few examples.

• North Korea tried to celebrate the 100th anniversary of the birth of its national founder Kim Il-sung with a big rocket launch. The rocket was also a thinly-disguised test for a long-range missile, but it failed by blowing up a little over a minute after launching. [url]
• The world’s first student-made rocket to hit space hasn't quite succeeded in reaching an altitude of 100 km, but there are a number of schools working on it. A pass or fail grade for this project seems like tough grading... [url]
• SpaceX is working on designing safer and cheaper manned spacecraft, anticipating an upcoming boom in commercial space ventures. For example, its launch abort system has integrated escape thrusters mounted to the side of the crew capsule, and these engines aren't jettisoned or wasted if the mission goes as planned. [url]
• To discover more links on space exploration, check out what's floating around in StumbleUpon universe. [url]  

By the way, StumbleUpon can also recommend some good Techdirt articles, too.

Eric Goldman points us to yet another example of ridiculous statutory damages rules around copyright creating awards in court cases that have no connection to any real harm. And, this time, it involves the violation of the highly questionable (and controversial) anti-circumvention clause of the DMCA. The case involves an online game, MapleStory, and some people who set up an alternate server, UMaple, allowing users to play the game with the official game client, but without logging into the official MapleStory servers. This kind of thing happens all the time.

In this case, the people behind UMaple apparently ignored the lawsuit, leading to a default judgment. However, even there, it appears that MapleStory went too far, and the judge is clearly annoyed with them at times. Even though judges often side entirely with winners in default judgments, in this case, the judge repeatedly expresses skepticism about arguments made for determining "damages" to be awarded. Thus on most of the claims, the judge seems to look for ways to avoid giving MapleStory much, if any, money. For example, in determining profits made by UMaple, the judge repeatedly knocks MapleStory for failing to show what profits were specific to UMaple's infringement, telling it that it can't just assume all money made by UMaple belongs to MapleStory. So the judge dumps a request for $68,764.23 in profits made by UMaple down to just $398.98.

But... then we get to the anti-circumvention stuff. Here, the ridiculous statutory rates set a minimum of $200 per infringement. Multiply that by 17,938 users of UMaple... and you get $3.6 million. MapleStory, of course, asked for the statutory maximum of $44,845,000, which the court refuses to grant. In fact, the judge chides MapleStory for its request for the maximum -- even to the point of noting that the arguments by MapleStory make it "question very seriously whether Plaintiff intended to actively mislead the Court or whether these oversights were merely the result of poor legal research."

The court then notes that the minimum statutory amount -- the $3.6 million -- is already "a significant windfall to Plaintiff far in excess of any amount necessary to deter future infringing conduct," and also that the "award here likely bears little plausible relationship to Plaintiff’s actual damages." In fact, it sounds like the court would very much like to decrease the amount, but notes that "nevertheless, the court is powerless to deviate from the DMCA's statutory minimum."

As Goldman says, this is "guffaw-inducing", because the minimum award seems to have no bearing on the actual seriousness of the infringement. As he points out:

this case does provide an excellent example of the ridiculousness of anti-circumvention statutory damages. $3.4M can't be the right damages award in this case, and it's so guffaw-inducing that it further erodes the legitimacy of our copyright rules.

Indeed. And yet no one seems interested in exploring just how disconnected statutory damages are from reality.

Years ago, we used to joke about the prevalence of "up to" language in the marketing around any kind of broadband connection. You'd see claims of speeds that could be reached in huge letters, but right before that, in fine print, would be an "up to." So sign up now to get "up to" 3 Mb per second. Of course that means anything less than that qualifies. Hell, they could argue any top speed, and as long as they included the "up to," they could get away with it. Eventually there was some cracking down on that and some threats that such language was potentially misleading, and companies have been somewhat (but not totally) clearer in describing their speeds. But, when it comes to DSL, there are other problems as well, including the general limitations on speed based on how far you are from the central office (CO). For reasons that still escape me, DSL providers seem notoriously bad at being able to predict ahead of time just how far you really are and what kind of speeds you can get. In the past, I've had these arguments with my DSL provider -- even to the point where a few years ago, when I had terrible DSL (despite living in the middle of Silicon Valley), I actually had an AT&T rep tell me that the company never should have provisioned my DSL because I was simply "too far" from the CO.

Either way, this confusion over distance has resulted in a new lawsuit -- which is trying to become a class action lawsuit -- against Verizon in California for over-promising speeds. This isn't just about the "up to" speeds being marketed. In this case, a woman was convinced to upgrade her account from a 768k top speed account to a 1.5 Mb top speed account -- at $10 more per month -- only to find that her line could only handle the 768k, based on her distance from the CO. She then had a Verizon rep tell her she should downgrade her account, but the company was unwilling to reimburse her for the higher fees she paid on a level of service she couldn't technically get.

Whether or not this specific suit has merit, it does highlight just how confused the DSL providers often are, where each time you call or speak to a rep, you will get different info. In another situation that I once had, I called to sign up for DSL a few years ago, and the rep told me that I couldn't get it at my location. When I said I was surprised, she told me to wait as she tried it on her "other computer," and that one said I could get DSL. It seems that even the DSL providers don't seem to have very good or consistent information themselves, so it's little surprise that customers get conflicting reports -- some of which lead them to paying too much for services they can't actually use.

One of the things that we always hear about new business models from critics is that they can't possibly "replace" some of the old business models. Often the talk is about how they're only good for "small" things, and how they simply can't scale. Of course, this seems to underestimate the nature of early experiments and how things grow over time. For example, Kickstarter has certainly become quite an amazing tool for helping to fund projects in the past couple of years. However, when discussing Kickstarter in the past, I've heard people complain that while it may be great for "small" projects of a few thousand dollars, it couldn't ever fund something "real," like more traditional sources could.

And yet... we've discussed how last year, Kickstarter users funded nearly $100 million in projects, and this year it's predicted to go much higher. And, already, we saw Kickstarter pass its first few million dollar projects. Then, late last week, the folks behind the Pebble e-paper watch announced that they were using Kickstarter to do pre-sales of their new iPhone and Android versions (previously they'd only offered a Blackberry version). The watch itself is certainly pretty cool. A smartwatch which is totally customizable, has a variety of apps, and basically acts as an interface with your phone (and it looks good). And lots and lots of people agreed. Within just 28 hours they had already passed $1 million. $2 million ticked off soon after. It's now approaching $4.5-million, making it the highest revenue Kickstarter project ever—and it's the fastest to get to those kinds of numbers.

No, we're still not talking about the huge budgets around Hollywood blockbuster movies -- but we're already going well past what the most expensive albums cost to record. But, more importantly, it's not difficult to see the trend lines here. And, Kickstarter has only been around for about three years. Go back to the beginning of Hollywood. How long did it take the traditional methods to get around to funding $3 million movies?

As Kickstarter (and similar platforms) become more and more popular, it's certainly not outside the realm of possibility to see a major motion picture funded via such a platform. This isn't to say (as I know someone will accuse) that this is the only way that such things will be funded. But it does highlight, yet again, that if there's demand, there will be ways to fund these things. If you don't think the future is full of amazing opportunities, you're simply not paying attention.

As China continues to climb up the economic rankings (it became number two last year, in case you missed it) its domestic policy begins to have wider implications for the rest of the world. A case in point is this news from Slashdot about proposed changes to China's copyright laws. Two sections in particular are proving controversial:

According to Article 46, any record producer who acts pursuant to Article 48 shall have the right to make recordings of musical works owned by another, without needing authorization from the original owner, given that the content had been published for three months or longer.

Article 48 stipulates guidelines for individuals or corporations who use non-original content: contact the National Copyright Administration department under the State Council; specify the original author and source of material; and submit a usage fee to the copyright collective administration organizations as stipulated by the National Copyright Administration within one month of use. The copyright collective administration organizations will then transfer payment to relevant parties.

The Chinese artist Gao Xiaosong is worried by the short period of exclusivity, but sees one advantage:

"The only positive byproduct of this amendment allows Chinese parties to record and distribute a new Lady Gaga album after it has been on the market for three months."

It will be interesting to see the response of the US music recording industry to this proposal. The fact that China can contemplate passing a law with these clauses, even though they are bound to be highly unpopular with US companies -- and hence the US government -- shows how much the balance of power is shifting between the two countries.

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We've talked in the past about cargo cult science and how a rather superficial understanding of complex situations leads people to only copy those superficial elements in the belief that they are why something works. Then, of course, when it doesn't work, they're confused. It's why South Pacific islanders thought that if they staffed the airport, American soldiers would return with supplies. It's why GM thought that if they just rebuilt the NUMMI plant inch-for-inch, they'd get the same production elsewhere.

I'm left thinking about this as I read about how some IP maximalists at a gathering about how to "counter" the public are discussing the importance of social media and their own usage of it. Even reading about the discussion sounds oddly stilted -- like your parents trying to sound cool by using youth slang:

The role of social media in promoting IP will be a key topic. For example, both USPTO Director David Kappos and EPO President Benoit Battistelli regularly write blogs about their respective offices.

The offices represented on the panel also use Twitter and Facebook as well as conventional media such as TV to communicate with users and society generally.

Oh my goodness. Can you believe it? They blog? They use Twitter and Facebook? They must know everything!

Perhaps, at some point, they'll realize it's not the usage of social media that made a difference, but the fact that the people using social media find these issues to be serious and important, and don't believe the official explanations for why they have to lock down content.

We've talked about exaggerations in "losses" due to infringement for many years. However, we've also discussed how claims of "losses" due to so-called "cybercrime" are also massively inflated. It appears that others are figuring this out as well. The NY Times has an op-ed piece from two researchers, Dinei Florencio and Cormac Herley, highlighting how all the claims of massive damages from "cybercrime" appear to be exaggerated -- often by quite a bit:

One recent estimate placed annual direct consumer losses at $114 billion worldwide. It turns out, however, that such widely circulated cybercrime estimates are generated using absurdly bad statistical methods, making them wholly unreliable.

Most cybercrime estimates are based on surveys of consumers and companies. They borrow credibility from election polls, which we have learned to trust. However, when extrapolating from a surveyed group to the overall population, there is an enormous difference between preference questions (which are used in election polls) and numerical questions (as in cybercrime surveys).

For one thing, in numeric surveys, errors are almost always upward: since the amounts of estimated losses must be positive, there’s no limit on the upside, but zero is a hard limit on the downside. As a consequence, respondent errors — or outright lies — cannot be canceled out. Even worse, errors get amplified when researchers scale between the survey group and the overall population.

This is pretty common. In the first link above, we wrote about how a single $7,500 "loss" was extrapolated into $1.5 billion in losses. The simple fact is that, while such things can make some people lose some money, the size of the problem has been massively exaggerated. As these researchers note, this kind of thing happens all the time. They point to an FTC report, where two respondents alone provided answers that effectively would have added $37 billion in total "losses" to the estimate.

This doesn't mean that the problems should be ignored, just that we should have some facts and real evidence, rather than ridiculous estimates. If the problem isn't that big, the response should be proportional to that. Unfortunately, that rarely happens. In fact, combining this with the recent ridiculous stories about the need for "cybersecurity," perhaps we can start to estimate just how much of an exaggeration in FUD the prefix "cyber-" adds to things. I'm guessing it's at least an order of magnitude. Combine bad statistical methodology with the scary new interweb thing, and you've got the makings of an all-out moral panic.

We've discussed in the past how it was the book publishers' own stupidity that put them in a position of demanding DRM from Amazon when Amazon wanted to launch the Kindle. The end result, of course, went exactly against the publishers' best interests, because it locked everyone in to Amazon as the platform. Because buyers can't easily switch to another platform and take their books with them, they have to keep using the Kindle (or Kindle app) if they want to continue to have access to the books they've bought in the past (because, remember, you don't own what you think you "buy" with ebooks).

Making Amazon such a dominant player in the market was a huge mistake -- and it was totally avoidable. We'd already seen the exact same thing happen with music and iTunes, where the labels originally required DRM, and Apple complied, locking many people into iTunes (a lock-in that was eventually taken away). We couldn't figure out why the publishers were so stupid to give Amazon such power, but it sounds as though it was a combination of technological illiteracy and an irrational fear of "piracy" trumping business sense.

Author Charlie Stross has a great blog post discussing a variety of issues around the history of Amazon and how it became such a dominant player in the market, in which he notes:

However, as subsidiaries of large media conglomerates, the executives who ran the big six had all been given their marching orders about the internet: DRM restrictions would be mandatory on all ebook sales, lest rampant piracy cannibalize their sales of paper books.

(This fear is of course an idiotic shibboleth—we've had studies since 2000 proving that Napster users back in the bad old days spent more money on CDs than their non-pirate peers. The real driver for piracy is the lack of convenient access to desirable content at a competitive price. But if your boss is a 70 year old billionaire who also owns a movie studio and listens to the MPAA, you don't get a vote. Speaking out against DRM was, as more than one editor told me over the past decade, potentially a career-limiting move.)

Once the publishers realized (way too late) that they'd turned Amazon into something of a monopsonistic buying power, they struggled to figure out what to do -- and the end result appears to look something quite like collusion -- which is why they're being sued today by the Justice Department. As the details of the lawsuit make clear, the deal with Apple wasn't just a deal to bring another competitor into the market, but one that was explicitly designed to increase prices for consumers.

As Stross notes, this was plan B. And it has now failed. That means that it's time for Plan C -- and the only reasonable plan C to get out from under Amazon's thumb is to drop DRM:

It doesn't matter whether Macmillan wins the price-fixing lawsuit bought by the Department of Justice. The point is, the big six publishers' Plan B for fighting the emerging Amazon monopsony has failed (insofar as it has been painted as a price-fixing ring, whether or not it was one in fact). This means that they need a Plan C. And the only viable Plan C, for breaking Amazon's death-grip on the consumers, is to break DRM.

If the major publishers switch to selling ebooks without DRM, then they can enable customers to buy books from a variety of outlets and move away from the walled garden of the Kindle store. They see DRM as a defense against piracy, but piracy is a much less immediate threat than a gigantic multinational with revenue of $48 Billion in 2011 (more than the entire global publishing industry) that has expressed its intention to "disrupt" them, and whose chief executive said recently "even well-meaning gatekeepers slow innovation" (where "innovation" is code-speak for "opportunities for me to turn a profit").

And so they will deep-six their existing commitment to DRM and use the terms of the DoJ-imposed settlement to wiggle out of the most-favoured-nation terms imposed by Amazon, in order to sell their wares as widely as possible.

I know there's been some talk about whether or not Apple or Amazon is the more "evil" party in the ebook world -- but it really seems like the publishers dug their own graves here. In their desperation to avoid the dreaded word "piracy," they never bothered to understand the real issues or the obvious results of focusing so strongly on DRM. Handing Amazon so much power was stupid. Colluding with Apple to try to get away from that original stupid decision was potentially even more stupid. The only real path to fixing things is to go back and fix the original stupid decision, and recognize that piracy is a hell of a lot less of a "threat" than handing over the entire market to a single player (or even just two major players).

If only they'd realized this originally -- just as tons of people had warned them.

Our own Glyn Moody has been doing some digging and has come up with some interesting info about how Microsoft has been trying to derail an effort in the UK by the government to use open, royalty free standards wherever possible. Microsoft, apparently went on the offensive, arguing strongly that the government should reconsider and also include FRAND (fair, reasonable and non-discriminatory) licenses. FRAND is better than nothing, but it's not royalty free, and can certainly limit access to information for those who cannot afford to pay. But what's impressive is how much Microsoft tries to demonize royalty free offerings -- even as it admits in its initial letter than it contributes to "dozens" of royalty free standards.

Moody also notes that Microsoft is misleading in trying to show just how popular FRAND is in open standards when it comes to software:

In a further attempt to downplay RF standards, the letter claims:

one recent study found that a typical laptop contains over 250 technical interoperability standards - with 75% of these being developed under FRAND terms, and only 23% under Royalty Free terms.

But when we look at the study itself, this is what we find:

we created a set of broad categories - display, graphics, sound, storage, BIOS, input device, processor, power, file system, networking, wireless, I/O ports, memory, software, codecs, content protection, security and “other” - and sought relevant standards.

As this makes clear, those "250 technical interoperability standards" were mostly about hardware interoperability. Of the purely software standards a far greater proportion were in fact made available under RF terms. Even more interesting, those RF-licensed standards included many of the absolutely core ones like HTML5, HTTP and HTTPS.

In other words, when it comes to software, the royalty free stuff is the core software that's used to power much of the internet itself. But Microsoft goes on to suggest that royalty free software is somehow limiting, mainly by highlighting some confusion people have had with the open document format. It's the typical Microsoft play: spread FUD to try to push people to its (more costly) solutions. Apparently competing on the merits is just too difficult.

You may know the name Jimmy Iovine. He's the head of Interscope Records, one of Universal Music's most important subsidiaries (if not the most important one). Not surprisingly, Iovine has a bit of a history of being something of a copyright maximalist. A few years back, he specifically called out the evils of children infringing:

"Rip it, burn it--the last few years parents and children have been given a pass when they knew in their hearts that [what they were doing] was wrong," Iovine said.

Indeed, he seems to suggest that parents share some of the blame for their kids infringing:

"(Piracy) is hurting kids because kids are learning a disrespect for the basic relationship between creativity and ownership. It's hurting parents because they are in on the sham."

So, one would assume that Jimmy Iovine's kids are squeaky clean, right? Especially, say, if they were professional DJs whose websites indicate they're a part of the Interscope/Universal Music family, right? Yes, that's the website of DJ Eye -- also known as Jamie Iovine, son of Jimmy Iovine. Jamie actually has a really good reputation as a DJ but, like many DJs, he releases mixtapes/remixes/etc. And, recently, it appears, Jamie's Soundcloud account was shut down due to copyright infringement: If you can't see that, it says:

My soundcloud is temp disabled due to some copyright bullshit. Getting it cleared up and should be re activated soon

His account is now back but a recent remix has gone missing. It was a remix that included Will.I.Am (Interscope Artist) along with Jennifer Lopez and Mick Jagger (not on Interscope).

None of this is to suggest that Jamie did anything wrong here. In fact, it looks like he did something completely natural and certainly very common: remixed some music in a cool way. But the way copyright law often works, you can now get in lots of trouble and owe lots and lots of money for doing something completely natural. Perhaps his father will realize that these issues aren't always so black and white, and even if your children are brought up in a house where they're taught repeatedly just how totally awesome copyright law is, it doesn't mean they won't, someday, discover how copyright law limits them, and get accused of copyright infringement.

With next week's vote on CISPA looming, the White House has made an official statement that implicitly criticizes the bill without mentioning it by name. The Hill reports that National Security Council spokeswoman Caitlin Hayden issued the statement after a cybersecurity briefing in Congress:

"The nation’s critical infrastructure cyber vulnerabilities will not be addressed by information sharing alone," Hayden said.

"Also, while information sharing legislation is an essential component of comprehensive legislation to address critical infrastructure risks, information sharing provisions must include robust safeguards to preserve the privacy and civil liberties of our citizens. Legislation without new authorities to address our nation’s critical infrastructure vulnerabilities, or legislation that would sacrifice the privacy of our citizens in the name of security, will not meet our nation's urgent needs," she said, without explicitly mentioning CISPA.

While it's very good to hear them to make privacy concerns a central point, the administration's reasons for this position are not entirely the same as the citizens and civil liberties groups who oppose CISPA. The White House endorses the Lieberman-Collins bill in the Senate, which does indeed include better privacy protections (including an all-important requirement to anonymize shared data whenever possible), but also grants the federal government broad new regulatory powers relating to cybersecurity and critical infrastructure. This is in stark contrast to CISPA, which explicitly forbids regulatory usage. The White House wants to be able to start creating rules for "critical infrastructure" providers, which is undoubtedly the number one reason they support the Lieberman-Collins bill—but granting them that power is opening up a whole different can of worms. Nevertheless, though not an explicit or especially strong condemnation, this statement from the White House still adds significant weight to the growing CISPA opposition. The fact that the bill they are backing has its own problems really just points to the bigger and more important question: is there really any need to rush to create new cybersecurity legislation.

This isn't a huge surprise, but it's good to see that the Supreme Court has agreed to hear an important case regarding the first sale doctrine in copyright law, and whether or not it applies to products made outside the US. The specific case is one we've been covering, involving a guy, Sudap Kirtsaeng, who was (legally) buying textbooks that were sold in Asia, and then reselling them in the US. Under the first sale doctrine this should be perfectly legal. But... due to a twisted interpretation of copyright law, a 2nd Circuit appeals court went against Kirtsaeng, siding instead with publisher John Wiley. The issue is that the law says that first sale applies to copyrights to products made "under this" law. And the argument is that a product made outside the US may have copyright, but it isn't made "under" US copyright law, and thus it doesn't qualify.

As the dissenting judge in the 2nd Circuit noted, this interpretation doesn't make any sense. The law doesn't say anything about location, just about whether or not it was "manufactured lawfully" under the terms of the law. So, as the judge noted, as long as the product can be subject to US copyright law, then first sale should apply. This makes sense, and hopefully the Supreme Court agrees.

Of course, the Supreme Court has addressed this to some extent. The 9th Circuit had ruled similarly in the Omega/Costco case, and while the Supreme Court had taken the case, Justice Kagan recused herself from that case, because she had said that the first sale doctrine should not apply to foreign goods. And, in the end, the court split down the middle. So that means that, as a deciding vote, there's a reasonable worry that Kagan will again say that the First Sale doctrine does not apply to foreign goods.

This is a dangerous and stupid interpretation of the law. It will cause tremendous trouble for anyone trying to sell pretty much any product made outside the US, because makers can claim that no one can resell such products without getting a new license. It will also drive more works to be made offshore, since (especially the copyright legacy players) will look to completely get rid of the first sale doctrine by "manufacturing" everything offshore. Hopefully, the Supreme Court recognizes the ridiculousness of such a result, but the result in the Omega case was not encouraging.

As Techdirt reported a couple of years ago, a hard-fought campaign in New Zealand to prevent software patents being granted there seemed to have paid off, with a Patents Bill explicitly excluding them that came with the following commentary:

We recommend amending clause 15 to include computer programs among inventions that may not be patented. We received many submissions concerning the patentability of computer programs. Under the Patents Act 1953 computer programs can be patented in New Zealand provided they produce a commercially useful effect. Open source, or free, software has grown in popularity since the 1980s. Protecting software by patenting is inconsistent with the open source model, and its proponents oppose it. A number of submitters argued that there is no "inventive step" in software development, as "new" software invariably builds on existing software. They felt that computer software should be excluded from patent protection as software patents can stifle innovation and competition, and can be granted for trivial or existing techniques. In general we accept this position.

But that victory may turn out to be hollow:

Despite having been in the Parliamentary process since 2008, the Patents Bill still languishes well down in the Order Paper (No 47 as at Monday April 2), and is awaiting Parliament’s consideration of the Commerce select committee’s report, followed by the Bill’s second reading.

Although New Zealand's Commerce Minister Craig Foss tried to explain this delay in terms of "the size and complexity of the Bill and the pressure of other legislation," there is a growing concern that something more sinister is happening:

there have been rumours that the Bill has been deliberately held back as potentially relevant to concessions that may be made as part of the Trans-Pacific Partnership trade agreement.

Foss's staff passed that part of our query on to Trade Minister Tim Groser’s office. Groser did not directly address the rumour and replied simply: "Progress on the Patents Bill is dependent on the wider legislative programme."

The TPP agreement is believed to require signatories to grant software patents. If the New Zealand government passed the Patents Bill in its current form, and then signed up to TPP, it would be faced with the prospect of needing to amend the legislation almost immediately -- and to justify its actions to the New Zealand public. The fear is that the current delay is so that it can sign TPP and then claim that it is "obliged" to remove the exclusion on software patents, before passing the Patents Bill.

If that happens, it would be an appalling example of how international trade agreements like TPP, drawn up behind closed doors with no input from the public, can then be used simply to override the democratic decisions arrived at through long and careful national debates.

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