Imagine if a government put out a series of questions that the public could respond to, garnered responses from across a community, listened to them, and then actually enacted sensible tech policy. Sounds like a dream, right? Well that's exactly what the UK just did.
One major conclusion is that the UK will apply AML (anti money-laundering) regulation to digital currency exchanges, with the details to be determined by the Parliament in the forthcoming session. The US, by contrast, already imposes such requirements on exchanges plus other digital currency companies via FinCEN and the Bank Secrecy Act. The UK government will also work to ensure that law enforcement has the tools it needs to stamp out criminal uses of digital currencies.
But the even bigger part is what's missing: no licensing regime for digital currencies. No arduous process for startups and small businesses. No policies that give an advantage to big institutions over up-and-coming innovators.
In fact, the British government decided that what is most appropriate is to work with the digital currency community to develop a set of best practices for consumer protection and create a voluntary, opt-in regime. This approach was chosen "in order to address the risks identified but without imposing a disproportionate regulatory burden on the industry." And because it recognizes the substantial promise that digital currency technology has to offer, the government will devote GBP 10 million (approximately US$15M) in an annual budget for research in the space, including the newly-formed Alan Turing Institute.
The report reads like a breath of fresh air, with an honest assessment of the current low likelihood of use by major criminal enterprise, and acknowledgements of the risk of regulating too much, too soon. It even summarizes the belief that New York's proposed BitLicense is an overly restrictive approach that could damage the industry.
The UK's approach differs from that of New York in several ways, including that the UK chose to analyze first and propose later. While NY did hold hearings in advance of releasing its regulations, it still to this date has failed to release a summary of its research and rationale for requiring strong digital currency regulation, despite its legal requirement to do so. And New York's regulations require permission to innovate via licensing, whereas the UK's proposal takes a different and far more innovation-friendly tack.
The UK digital currencies report acknowledged that market participants are addressing some of the risks in the space, and singled out exchanges as a special category, instead of New York's overly broad "virtual currency business activity" that encompasses everything from microtipping services to launching a protocol for a new currency. (As an aside, New York has claimed it won't regulate "software developers," but what it actually means is it won't regulate software developers as long as they aren't developing the software covered by its proposed law.)
Some London-based entrepreneurs I spoke to reacted with uncertainty about the effect that overly burdensome anti money-laundering regulations could have, and this is yet to be determined. But in the end, a regime in which one does not need permission to innovate, but instead has a reasonable set of rules to abide by, bodes far better for building the future of technology.
Basically, the UK just became the anti-NY. And the innovation will flock to the places with smart, sensible policies that allow for permissionless innovation.
Patent trolls -- sometimes known more politely as "Non-Practising Entities" (NPEs) -- probably have few fans among Techdirt readers, but there are some who try to justify their activities. Here's how the argument usually goes:
Defenders of patent trolls ... argue that they serve as business intermediaries between inventors and commercializers. While the traditional theory of the patent system is that patents encourage innovation by allowing inventors to exclude competitors from the market and therefore earn supracompetitive returns, a number of scholars have argued that the patent system can encourage commercialization of inventions once they are made by allowing the inventor to control who can develop the technology.
Based on our preliminary evidence, the theory that NPEs facilitate innovation either through the creation of new products or by delivering actual technical know-how from inventors to implementers doesn’t hold water. NPEs almost never actually provide any valuable information to their licensees, and they rarely, if ever, prompt the development of any new products. Licensees are paying for freedom to operate -- the right not to be sued for implementing technology they developed on their own but which someone has asserted will fit within their patent rights. Thus,
does not support the efficient middleman hypothesis for characterizing the role of NPEs.
That's a valuable contribution to the debate about patent trolls, but the paper offers other insights. For example, it finds that not only do patent trolls not bring about much technology transfer with their patent licensing, neither does anyone else, either:
That doesn’t mean technology transfer doesn’t happen; it does. But it may mean that technology transfer happens early in the life of a technology, and that secrets, collaborations, and informal know-how, not patents, are the primary focus of real technology licensing agreements.
That's an important point. The paper also provides yet more evidence that the 1980 Bayh-Dole Act, designed to encourage the commercialization of research results through licensing, actually turns universities into patent trolls -- something that Techdirt has discussed before. Although the authors suggest that further research is needed to confirm their results, it already seems pretty clear that both patent trolls and Bayh-Dole need to go.
A month ago, I gave a little preview of the news that we, the team behind Techdirt, were launching a new think tank and network of innovators called the Copia Institute. That launch is happening today, with our event in San Jose, and I wanted to just provide a short post on why we're doing this, and why it's so important.
The word "copia" is Latin for abundance -- and over nearly two decades of following, researching and writing about the innovation industries, over and over again, we see that it's the story of abundance. Of an abundance of information, certainly, but also of the role that abundance plays in everything that we do. Businesses, business models and government policies that were all built for a world of scarcity run into trouble when suddenly plopped into a world of abundance. And we see it happening every day. There are the obvious ones that we talk about all the time around here: music, movies, news and software. But it goes way beyond that. A switch from a world of scarcity to one of abundance is going to impact nearly every other industry as well: manufacturing, finance, healthcare, energy and education among others.
The discussions that we've had in the past about the changes that hit music, movies, news and other industries were really only the beginning. The world is changing in very profound ways, and if you view it all through the lens of scarcity, it looks very, very distorted. The arguments over new business models and copyright laws were just a warmup to what is going to impact basically every industry and every society in the next few decades.
Understanding abundance matters. You cannot understand the world we are moving towards if you continue to view it solely on the basis of scarcity.
And thus, we're building Copia -- to bring together people who think about these issues, and who actually want to get together and do something about them, hopefully preventing crazy messes and lawsuits that we've seen in other arenas. Some of this may certainly involve working on policy issues, but there are lots of groups that are already doing that. Our focus, as an organization in the heart of Silicon Valley, will be on what innovators do best: innovating -- but doing so with an awareness of the policy realities. And that means looking for creative solutions that don't always rely on convincing policymakers to make this decision or not make that decision. We expect to be involved and engaged in those debates, but we're really interested in coming up with other, more innovative solutions as well.
For example, nearly 15 years ago, as people were realizing that copyright law was just not built right to function in an internet era where people wanted to share stuff, a group of very smart individuals came up with Creative Commons. These days, as we sit around waiting for Congress to finally tackle patent reform, we see companies doing creative things like coming up with an Innovator's Patent Agreement to avoid patents becoming tools of trolls. Tech companies came together to create a Defensive Patent License, and you even have companies like Life360 offering free legal support to any startup sued by the same troll that sued it.
These are creative solutions that involve innovation. They don't solve everything, and those working on them still -- quite reasonably -- support policy changes as well. But we need more discussions about creative solutions that don't involve just sitting around and waiting for policymakers to do their thing. We need to bring together the people who understand how the world is shifting, from one where everything was scarce to one where many things are abundant -- and to look for ways to harness that abundance to create more good in the world, rather than to lock it down under rules of artificial scarcity just to make it conform to the way things used to be. That's why, at our inaugural summit, we're discussing a diverse range of things from health data & ethics to privacy to 3D printing to the blockchain to copyright, patents and freedom of expression.
That is what Copia is about. It's about looking at the world through these eyes of abundance. It's not about ignoring the policy world, but working closely with it -- to better understand the impact of the decisions those in government make, and to help guide them along more reasonable paths that embrace and (even better) enable more abundance.
Research into why Silicon Valley became Silicon Valley suggests that it is the free exchange of ideas and information -- brought about through a historical quirk of California state policy that outlawed non-compete agreements -- that resulted in all of this innovation. That sharing of information (an abundant resource) has created so much innovation already. Copia is about continuing that trend, bringing together people to share ideas and come up with creative and innovative solutions to a variety of challenges -- technology, business model and policy -- to see what we can do to help the world transition into greater abundance and less scarcity.
As we make this journey, we expect you, our loyal community at Techdirt, to come along and be a part of the process. We'll be using the discussions on Techdirt as part of this effort, to drum up interesting and unique ideas, new research, new tools and new inspiration. It will be an adventure into the world of abundance.
We'd also like to thank the sponsors that made this launch possible, starting with the MacArthur Foundation, which provided a grant that is enabling us to start this work. We're also thankful for sponsorship from four of the best, most well-respected venture capital organizations in the world today: Union Square Ventures, Andreessen Horowitz, Foundry Group and Spark Capital. Finally, four technology companies have sponsored Copia as well: Google, Automattic (Wordpress), Yelp and Namecheap. We should have additional sponsors to announce soon as well. We're especially excited about the mix of sponsors from different areas. What we're putting together is not a trade group, or an advocacy organization, but rather a group of people focused on innovating and bringing more good into the world through creative means.
* In case you don't get the title reference, click here.
California, the state that prides itself as the birthplace of modern technology and whose policies such as the unenforceability of non-competes contributed substantially to the innovation ecosystem, recently proposed a law that requires innovators to get permission from the state, or be banned.
Last week CA's State Assembly announced AB 1326, a bill that would ban any unlicensed bitcoin or cryptocurrency business activity. It would "prohibit a person from engaging in this state in the business of virtual currency, as defined, in this state unless the person is licensed by the Commissioner of Business Oversight or is exempt from the licensure requirement." Banks, financial institutions, and governments would be exempted under the law, making it even harder for a startup to compete. Worse yet, the bill doesn't even define what "the business of virtual currency'" means, making it both overly vague and counter to the very nature of the trustless, permissionless innovation that bitcoin and blockchain technology enable. So right now, if you're building multisignature technology to better enable people to secure their bitcoin, or developing an open source peer-to-peer remittance app that connects users to send each other bitcoin, the state of CA could very well ban you from operating unless you've received a license.
So for the next wave of entrepreneurs building technology in the bitcoin or blockchain space, the state is poised to say that in order to start your company or release your technology, you must pay $5000 for a license and tens or hundreds of thousands in legal and compliance fees, not to mention requirements such as informing them of your educational background and 10 years of past addresses. That might be awkward for the 21 year old college dropouts working on a cryptocurrency startup. And of course there's no guarantee the state will actually grant the license, or shall we say, permission.
I wrote last summer about the problematic approach that NY state is taking with its proposed BitLicense, an attempt to make virtual currency entrepreneurs demand permission from the state to innovate, and how the even greater danger was that other states would follow suit. I expected a more innovation-friendly approach from California, but this bill may prove me wrong.
The cryptographic technology behind bitcoin itself has tremendous potential to enable more transparency (proof of solvency, real time continuous auditing), and security (multisig, threshold encryption), providing compelling solutions to public policy concerns that licensing regimes only attempt to address. The assumption that the analog-world model of licensing must fit this new and fast-evolving space is ignorant at best and dangerous at worst.
California can and should do better. It can craft policies that enable entrepreneurs to innovate and encourage them to implement good practices on security and consumer protection without requiring licensing and permission. And if California won't do it, there are many other jurisdictions that will. Australia, UK, and Singapore, to name few, are all looking to implement policies to be the crypto Silicon Valley.
Tomorrow, I and others will be discussing the development of cryptocurrency and blockchain policy at the Copia Inaugural Summit. The future viability of this important ecosystem depends on getting it right -- so we need everyone to make themselves heard as the debate moves forward.
from the politicians-don't-understand-anything dept
Like many folks, I'm dreading the seeming inevitability of a Clinton-Bush presidential campaign next year involving Hillary Clinton against Jeb Bush. I'm 40-years-old and half of my life has involved a Clinton or a Bush in the Oval Office (and it's even worse if you count Vice Presidency). Both seem completely out of touch with the real issues of today. Instead, both are so surrounded by political cronies and yes-men that it's difficult to see either candidate as being willing to actually take on the real challenges facing the world today. Clinton is currently dealing with the fallout from her decision to expose her emails to spies while shielding them from the American public. And Jeb Bush is now spouting pure nonsense on net neutrality.
Bush's comments aren't surprising, because despite Democrats and Republicans alike both strongly supporting net neutrality and those who truly understand the details favoring these rules, in Washington DC, net neutrality is a partisan issue. The reason almost certainly has to do with campaign finance. Splitting an issue down partisan lines makes it an issue that politicians can raise money around. Things that everyone agrees on aren't useful for fundraising, and since politicians these days need to spend half their time fundraising, politics gets distorted pretty quickly.
But Bush's comments are particularly clueless, trotting out both debunked talking points and clear misstatements that appear to have been fed to him by the broadband players.
“The idea of regulating access to the Internet with a 1934 law is one of the craziest ideas I’ve ever heard,” he said. It was the first time Bush had weighed in on the subject since the FCC voted.
“Just think of the logic of using a 1934 law that was designed when we did have a monopoly for wireline service as the basis to regulate the most dynamic part of life in America,” Bush said. “It’s not going to be good for consumers. It’s certainly not going to be good for innovation.”
Except, you know, that's not true. The 1934 Telecommunications Act was rewritten in 1996by Republicans, who set it up this way with a clear plan for broadband to be covered by Title II. As Tim Lee at Vox recently explained:
The awkward thing about this is that the rules were drafted by a Republican Congress in the 1996 Telecommunications Act. In that legislation, Congress created two legal categories for online services: a low-regulation category for online services (known unimaginatively as Title I) and a high-regulation category for companies that provide basic infrastructure (called Title II).
When telephone companies began offering broadband access using a then-new technology called Digital Subscriber Lines, it was widely accepted that Title II — the stricter regime designed for basic infrastructure — would apply. After all, telephone companies had been governed under Title II for decades before that. Title II rules had ensured that telephone companies didn't strangle the burgeoning market for dial-up ISPs, which provided internet access over telephone lines.
But Bush trots out the 1934 argument in a totally misleading way. And yes, in 1934 there was a monopoly for wireline service, but in 1996 when the Act was rewritten (again, by Republicans), there was actually a lot of competition in the ISP business thanks to line sharing. Yet, today, everyone knows that there's basically no competition. While not a monopoly, it's at the very least an oligopoly with very little choice for most consumers.
Furthermore, the rules are pretty clearly just basic rules to prevent anti-consumer behavior by the ISPs. How that's going to be "bad for consumers" is hard to fathom. And considering that many of the most innovative internet companies have come out strongly in favor of net neutrality, it's hard to see how it's going to be bad for innovation. You can't even argue that it's going to be bad for broadband companies either, since many independent broadband providers, like Sonic.net, have come out in favor of the rules. As we've noted in the past, it's only bad for broadband providers that want to treat customers badly.
So, does Jeb Bush really think he understands internet innovation better than all these internet companies that have pointed out how the new rule is helpful to innovation?
Is Jeb Bush giving a giant middle finger to internet innovation? That hardly seems like a good campaign move.
But, apparently, Bush not only is doing that, he's also going to totally misrepresent others to do so:
Bush said that Netflix and other backers of net neutrality are already regretting the scale the FCC’s action. “There is no support for this now,” Bush said. “The people who were concerned about this, the content providers like Netflix and others, have now disowned this.”
That's just hogwash. There's massive support for this, which Bush would have noticed if he actually paid attention to the internet, which celebrated when the rules were approved. Anti-net neutrality folks have seized upon an out-of-context statement from a Netflix exec claiming that it would have been preferable to find another route -- but that's not disowning the rules. We've been among those who have pointed out for months that reclassifying under Title II was simply the best of a bunch of not great solutions. Yes, it would have been better to have something even cleaner than reclassification, but that option was not on the table.
Restrained rules, based on Title II, are a perfectly reasonable solution to stopping broadband providers from implementing anti-consumer practices. The only "innovation" it may harm is the broadband guys innovating new ways to screw over consumers and successful internet companies. If Jeb Bush is looking for support from the most innovative sector on the planet, spewing lies and misrepresentations about key issues for the internet world seems like a piss poor way to go about it.
We've written a few times about Elon Musk and Tesla's decision to open up all of Tesla's patents, with a promise not to sue anyone for using them. We also found it funny when some reacted to it by complaining that it wasn't done for "altruistic" reasons, but to help Tesla, because of course: that's the whole point. Musk recognized that patents frequently hold back and limit innovation, especially around core infrastructure. Since then, Musk has said that, in fact, rivals are making use of his patents, even as GM insists it's not.
However, as some may recall, when Musk made the original announcement, the terms of freeing up the patents were at least a little vague. It said that Tesla "will not initiate patent lawsuits against anyone who, in good faith, wants to use our technology." That "in good faith" claim had a few scratching their heads, and pointing out that still gave Tesla an out. We were a little disappointed that the company didn't make the terms entirely clear, believing that the "in good faith" line would likely scare away some companies from actually using the patents. However, recently, at the Detroit Auto Show, when questioned about this, Musk clarified that he really meant to make them completely free for anyone to use, no questions asked, no licensing discussions needed:
Around the three-minute mark someone asks how many automakers have taken Tesla up on the offer to use its patents, and Musk notes:
Musk: We actually don't require any formal discussions. So they can just go ahead and use them.
Reporter: Is there a licensing process?
Musk: No. You just use them. Which I think is better because then we don't need to get into any kind of discussions or whatever. So we don't know. I think you'll see it in the cars that come out, should they choose to use them.
In other words, Musk is saying what most of us assumed all along was the point. Hoarding the patents and blocking others doesn't help him at all. Letting others expand the market does. And licensing discussions are unnecessary friction and a waste of time.
All good, right?
Well, no. It appears that clueless Wall Street types are absolutely flipping out over this (possible registration wall). Some outfit called "Technology Equity Strategies," which doesn't seem to understand the first thing about how innovation actually works, posted an insanely long and ridiculously misguided note on how this is horrifying for anyone invested in Tesla. The descriptions are hilarious, where you can almost hear these Wall Street types pulling out their hair over this idea of *gasp* actually letting others use Tesla's patents. First, it notes that Musk called them "open source" patents, and spends way too much time detailing the "official" definition of open source, and then says that the patents are now "public domain" (apparently not recognizing that public domain and open source are not the same thing -- though in this case it might not matter). Technology Equity Strategies is very upset about this.
The restrictions in the June 12 blog of "good faith" and "we will not initiate" are over with. They are finished. These patents are either in the public domain, or they have at minimum been rendered unenforceable against all users, "good faith" or not.
Why? Because in their non-innovation minds, all they care about is how do you best value the stock, and giving up patents is giving up an asset. The note first (mistakenly) argues that many areas of the tech industry rely on patents as barriers to entry and that's where their advantage comes in (rather than execution, which is the truth). And so, it thinks now some other company will just come in and eat Tesla's lunch:
Is it possible that the massive capital and labor needed to attain leadership might not be eroded in by imitators in Asia, by large companies with resources to buy market share, by companies whose strengths are manufacturing process, global footprint and scale?
If so, the embedded option on a leader in a new niche in the auto industry and on a shift in the competitive dynamics in the auto industry might indeed be a valuable option.
But Mr. Musk was not interested in that. He is happy to give away the advantages that actually provide great profitability in some sectors of technology. He wants to compete as an auto company, in the brutal and capital intensive way that auto companies compete. More fundamentally, he is willing to eliminate the possibility in the future of competing as a technology company, which depend on the IP protections of patents, copyright, and trade secrets.
Of course, the reality is that Musk recognizes what many in this sector recognize: that sharing the ideas helps speed along innovation, creating greater and greater opportunities, which you can realize by executing well. Musk is confident in Tesla's ability to execute and (as we noted earlier) recognizes that sharing the patents actually helps Tesla by getting more electric vehicles on the market, meaning more overall infrastructure that makes Tesla cars more valuable.
This is the ridiculousness of Wall Street: sometimes it simply can't understand the nature of a non-zero sum game. Giving up any "advantage" is seen as helping others, without recognizing that helping others can also help you out tremendously. Instead, these investor types believe in the myth of intellectual property, that it's patents that make a company valuable:
Intellectual property is an important foundation for valuation technology companies. Funds that own Tesla may not be the same institutions who own GM or Ford, but many will be familiar with Qualcomm and ARM.
IP goes a long way in explaining why Qualcomm has a market cap of $110 billion, and ARM has a valuation of 23 billion (18x trailing revenues) while Nokia and Dell were sold for less than two times revenues. Nokia and Dell did fine work for a while as manufacturers and product companies. There was a time when they too looked like winners based on product execution. But they didn't own core IP, and so when product cycles shifted, they were left with little value.
Yes, ARM and Qualcomm are both patent-focused companies (that dip their toes into trolling all too often). And, yes, companies that don't execute well can lose out in the end, but cherry picking a few companies that have flopped on execution, while pointing to a few trollish companies as success stories, doesn't make a very strong argument. It's basically saying "yes, invest in the companies that don't believe in their own ability to execute, who have a fallback as a patent troll." That's not exactly a strong endorsement. Tesla believes in its own ability to innovate -- and these Wall Street guys think that's a bad thing.
And then there's the rewriting of history:
Let's look at Apple. Apple and Steve Jobs learned the hard way. Some of us will recall that an early Apple (believing that IP wasn't important) opened up its IP to the basic Mac interface with a royalty free license to Microsoft.
This resulted in Microsoft Windows taking nearly the entire PC market from Apple, and nearly bankrupting Apple. In his second chance, Steve Jobs learned about the importance of IP. This is a lesson that Mr. Musk failed to absorb.
Except, that's totally incorrect. While Apple had licensed a few aspects of its UI, that licensing agreement became meaningless by the time of Windows 2.0. Then Apple sued Microsoft and lost, because it was trying to use copyright law to claim things that could not be covered by copyright law. And that's not why the PC took over the market. So this isn't a lesson that Musk failed to absorb, because it never happened.
The Grand Gesture shows the worrisome sincerity in Musk's repeated statements that he is primarily on a mission to get other companies to sell a lot of electric vehicles, not to make money.
A worrisome sincerity? No, it's showing that Musk recognizes that if the market for electric vehicles does not grow massively, then he won't make money. He very much wants to make money, and a good way to do that is to build out the overall market for EVs, allowing Tesla to thrive. And these Wall Street folks first mock the idea that Musk might first invest to grow the market, by then... claiming that Asian makers might do the same thing:
No doubt Mr. Musk believes that if the industry embraces EVs, then Tesla will succeed as part of it. But is this plausible, that everything will just work out for the best. Is it plausible that Musk can succeed as a manufacturer in the U.S. competing against manufacturers in Asia who may take zero margins to grow a business, using Musk's proven designs? U.S. companies have learned over and over that IP is necessary to get a sustained profitable return on their innovations.
Actually, no. Plenty of tech companies don't think that IP is "necessary" to get sustained returns -- they think the opposite. Patents get in the way of profitability. They require lots of lawyer time and threats of lawsuits.
Frankly, Tesla opening up its patents seems like a move that shows how confident it is in its execution abilities, and makes the company a lot less likely to rest on its laurels and become nothing but a "licensing" company down the road. The fact that people who don't understand what a mess patents are and how they slow down innovation are now jumping in making ridiculous claims like Tesla's decision is why Apple can now jump into the EV car market just shows how little some people understand patents. The "myth" of patents as a powerful tool of innovation is still out there, and that's a shame.
I wanted to drop a note to the Techdirt community about an exciting new project that we're launching one month from today: The Copia Institute, a new network of future-focused innovators. Copia is Latin for "abundance" -- and information abundance is the hallmark of our time, and the source of many of its biggest opportunities and toughest challenges. We're working collaboratively with everyday internet users, business experts and technology policy leaders to focus on the challenges and opportunities we face in this age of abundance.
Think of it as a think tank for the information era.
While following and writing about issues related to innovation, business models and policy, we've seen up close the amazing power of innovative startups and pioneering technologies to change the world in powerful ways. It's hard to remember what things were like just a decade ago -- before Facebook, iPhones, YouTube, Twitter, Airbnb and more. Our lives have changed in profound and exciting ways -- and such change will continue to advance rapidly in the future. It's inspiring, exhilarating and wonderful. But it also presents unique challenges. Innovation can upset existing industries. It can collide with outdated regulations that were originally designed to protect us but now serve as roadblocks that slow progress and weaken the innovative spirit. And, sometimes, it creates ethical challenges and questions that deserve deeper levels of consideration.
With Copia, we'll bring together innovators, internet users, policymakers and experts with diverse and distinct perspectives to discuss these issues. But we won't just talk, we'll act. We will work to resolve the issues of today while preparing to address the issues of tomorrow. We want to help innovators tackle issues early on -- and look where we, as a group, can develop creative ways to embrace opportunities that make the world a better place while minimizing downsides or negative consequences.
We're launching Copia with an Inaugural Summit on March 12-13th at the Tech Museum of Innovation in San Jose. We'll host stimulating brainstorming sessions on disruptive innovations and policy challenges, as well as a special tech industry General Counsels' roundtable to discuss principles of innovation.
We have an ambitious agenda, so stay tuned. We will share more details as the summit approaches, but until then, I look forward to seeing some of you there!
sciamiko points us to an interesting study done by Stuart Graham, who was the first chief economist of the US Patent Office (we were initially excited about his hiring, though the only other time we reported on his work, it was to wonder why a paper hid his connection to the USPTO), looking at whether or not inventors choose to reveal the "secrets" of their invention prior to actually getting the patent. Graham and his co-author, Deepak Hegde, examined what happened after the American Inventors Protection Act (AIPA) went into effect in 2000. Part of the AIPA was that the USPTO would publish patent applications after 18 months (usually well before the patents were approved or rejected) -- rather than only making them public after they were approved. The usual suspects (patent hoarders and self-described "small inventors") screamed like crazy about how this would completely destroy American innovation, because they'd have to reveal their secrets too early. To try to appease these concerns, the bill included a loophole: patent applications could be kept secret if they didn't file for foreign patent protection -- which was the case for about half of all US patents.
That gave Graham and Hegde a nice dataset to look at, to see who chose to keep their patent applications secret until approval, and who let those applications be revealed. If those who freaked out about the publication requirement were right, it should be clear in the data that, when given the chance, businesses kept their patents secret, and the "secret" patent applications should be worth more than the non-secret ones. The reality? The exact opposite was true. Inventors chose to reveal their patent applications readily, even when they had the option of withholding them, and the more valuable patents tended to be the ones that were revealed:
They examined 1.8 million granted patents filed at the USPTO from 1995 to 2005 and analyzed the disclosure preferences of the inventors. Their analysis found that, among those not seeking foreign protection, about 85 percent of inventors filing a patent since 2000 chose to disclose information about their patents prior to their approval.
"Overwhelmingly, those inventors patenting only in the U.S. are choosing 18 month disclosure," co-author Hegde said.
And the study appears to show that the complaints and worries of those small inventors about this increased transparency was, in fact, complete bunk:
When the AIPA was passed, one of the biggest complaints was that the publication requirement would hurt U.S. small inventors, but the researchers found that individuals and small companies still opted for disclosure during the study period.
"Small U.S. inventors are not choosing the secrecy route," Graham said. "When they patent only in the U.S., they are choosing secrecy in only about 15 percent of the cases, not statistically different than the rate among all other types of inventors."
Another major complaint of the AIPA was that disclosing patent secrets would stop the engine of innovation in the United States and that society would get less meaningful inventions. Contrary to these arguments, the researchers found that patents born out of secrecy were overall less valuable than those that opted for disclosure.
"When we examine indicators of patent value, we find consistent evidence that the least-valuable and least-impactful patents are those that opted for pre-grant secrecy," Hegde said.
This isn't particularly surprising to us -- as, contrary to the way some think, we've pointed out for years that hoarding information tends to limit innovation, while sharing it is likely to lead to greater innovation. Of course, it's the same "small inventors" who insisted the sky was falling over the AIPA who are now protesting the latest attempt at patent reform, making similar claims about how it will drive down quality and drive inventors out of business. They were totally wrong last time, and it's likely they're totally wrong again.
Stan McCoy was, until recently, the lead negotiator on "intellectual property" for the US Trade Representative -- making him the main guy behind ACTA and the horrific intellectual property sections of the TPP and TTIP agreements. Then, last year, he jumped ship exactly where you'd expect him to go: becoming a lobbyist for the MPAA. McCoy, as we've noted, has a history of condescension and mocking towards anyone expressing concern for "the public," rather than "the industry" which pays his bills.
So, it should come as little surprise at all that, in his current role, he's out there trotting out more bogus claims that ignore reality, in order to push the agenda of his employer. In a blog post discussing his appearance on a panel in the UK, McCoy insists that he's busting the myth that there's piracy because the content isn't available from authorized sources:
We need to bust the myth that legal content is unavailable. Creative industries are tirelessly experimenting with new business models that deliver films, books, music, TV programs, newspapers, games and other creative works to consumers. In Europe, there are over 3,000 on-demand audio-visual services available to European citizens. According to a recent KPMG report, 86% of the most popular and highest quality films and television series are available across legal digital platforms to UK consumers.
Okay, so this is McCoy's attempt at mythbusting. And it fails, pretty miserably, as TorrentFreak's Ernesto showed with just a little bit of effort. He went and looked at the top 10 most downloaded films last week and busted McCoy's weak attempt at mythbusting:
Click through for TorrentFreak's clickable chart
And, of course the KPMG study that McCoy relies on is quite misleading as well, since it actually found that over 80% of the top movies are not available on Netflix, by far the most popular service. That means that if people actually wanted to see the movies they want, they face a fragmented, confusing market, in which they'd need to sign up for a bunch of different services with different limitations to actually see what they want.
In other words, despite the MPAA pretending otherwise again and again, it remains a simple fact that the lack of availability and convenience on authorized services has a difficult time competing with the availability and convenience of unauthorized offerings. The same thing has been true for well over a decade. The music industry has mostly figured this out, so why can't the movie industry?
Of course, what McCoy can't really say is the truth: the movie industry can't readily adapt because it will piss off the theaters. The recording industry couldn't more fully embrace the internet until the old record stores finally lost their power, and the studios are held back by the theaters nowadays. Of course, the MPAA could and probably should be trying to help transition to the future by pushing back against the theaters' outdated views and explaining to them how they can also easily compete with home viewing by providing a better in-theater experience. But that takes real work. Instead, the MPAA's focusing on "content protection" because that way it retains a reason to exist.
Techdirt has written a number of times about growing evidence that good, reasonably-priced streaming services are reducing dramatically the number of illegal downloads in the regions where they are available. One of the countries where that was observed some years ago is Norway. Now, a new report in Music Business Worldwide indicates that things are looking even better for the recorded music business there:
A countrywide survey in December 2014 showed that just 4% of Norwegians under 30 years still used illegal file-sharing platforms to get hold of music.
Even better for the worldwide industry, less than 1% of people under 30 years said that file-sharing was their main source of obtaining music.
The head of the International Federation of the Phonographic Industry (IFPI) in Norway, Marte Thorsby, explains why she thinks that has happened:
"We are now offering services that are both better and more user-friendly than illegal platforms… In [the past] five years, we have virtually eliminated illegal file-sharing in the music industry."
There we have it from the recording industry itself: offer "better and more user-friendly" products and illegal file-sharing just goes away on its own -- no intrusive surveillance, punitive three-strikes or clumsy site blocking required. How much clearer does it have to be?