Intellectual Property Brouhaha
One of the interesting things about writing this site in a part-time capacity is that a controversy can take shape, reach its peak, and become resolved before I’ve had the chance to write about it. Case in point: Information Architects’ patent on Writer Pro’s “Syntax Control” feature. Here’s what IA’s Oliver Reichenstein wrote about that feature:
Syntax Control — distinguishing a specific aspect of the text to assist in editing — is a solid innovation, one we’ve been working on for more than four years. As with every serious design, once you have seen how it works and how effective it is, it seems obvious, but it was a long road to get there. We’ve trademarked and obtained patent pending for Syntax Control. If you want it in your text editor, you can get a license from us. It’s going to be a fair deal.
There’s a lot to unpack as to why this is controversial, but let’s start with the trademark status of Syntax Control: Reichenstein claims they’ve registered the mark, but a quick search of the US Patent and Trademark Office’s database reveals no such mark. Information Architects has offices in Switzerland and Japan; unfortunately, those countries do not have a public trademark search engine.
Then there’s the patent situation, which has been conflated with a lot of other software patents but isn’t at all like a generic software patent for one reason:
NSLinguisticTagger. Yeah, that’s right: Information Architects tried to patent an existing part of Apple’s SDKs. Oh, the gall, the cojones. An “innovation [they’ve] been working on for more than four years” my aching ass.
Not exactly. This event demonstrates just how ridiculous many software patents are. We’ve been talking ad nauseum about intellectual property in the digital era seemingly forever: from the Apple v. Samsung trial, to the other Apple v. Samsung trial, and the Rockstar stuff. And now this.
And now you want my opinion.
This is going to be tricky because I’m not entirely sure where I stand on intellectual property as an entity. Trademarks seem generally alright — you don’t want some guy making tomato soup in his garage and branding it with the “Campbell’s” logo, or two major companies trading under the same name. But copyright and patent law requires a more complex story.
The Copyright Term Extension Act (CTEA) of 1998 extended copyright terms in the United States. Since the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. The Act extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier. Copyright protection for works published prior to January 1, 1978, was increased by 20 years to a total of 95 years from their publication date.
Make no mistake: that’s a long-ass time for the rights of a work to be held by anyone.
But it isn’t simply the term limits which are outrageous: it’s also in the way that copyright law is policed. The Disney empire is built largely on the backs of public domain stories — Cinderella, Snow White, and so forth — yet the company vigorously threatens anyone who goes near those stories. The company also lobbied in favour of the Copyright Term Extension Act. Simply, Disney wishes to lock down their adaptations of other people’s stories for as long as possible.
Then, of course, there are overzealous DCMA reports:
A representative of NPG Records wrote to Twitter to say eight video clips hosted on Vine contained “unauthorized recordings” and “unauthorized synchronizations” and asked the company to remove them immediately.
Six seconds of Prince music in the background of your Vine clip? Violation. Ridiculous.
And then there are patents, the intellectual property everyone loves to hate. I reiterate: I don’t entirely know where I stand on software patents, let alone patents in their entirety. I think that’s because the discussion so far hasn’t been finely-grained enough for me to form an adequate opinion on them. Asking someone what they think of patents is like asking them what they think of food: what if they have a dietary restriction, or dislike a certain kind of food? Similarly, an opinion on patents should really be filtered as an opinion on the different components:
- Patent assignment: how are patents granted or denied? Is the process adequate?
- Innovation: is the invention actually that innovative? Similar to (1), is there someone in the patent office who can reliably make that judgement? Is the prior art discovery process sufficient?
- Term limits: are patent terms of adequate length, or should they be shorter to compensate for increased productivity and speed of innovation?
- IP usage: is the intellectual property actually being used in a product or service?
- Challenging: is the process for challenging the legitimacy of a patent sufficient?
- Enforcement: is the process for enforcing patents sufficient?
These aren’t easy questions to answer. They require nuance and detail, and the answers will vary on a per-patent basis. I can’t answer them, mostly because I lack any schooling or training whatsoever in intellectual property law. So take everything I say here with that caveat in mind.
I have previously supported certain patents. I do believe there is fundamental innovation at the heart of some inventions, even in the software space: video codecs come to mind. In the hardware space, I think unique designs or innovative production methods should be patentable. I think it’s entirely within the rights of a person or company which invested the time and money into developing these things to reap some reward from protecting these innovations and licensing them to interested parties.
There’s so much wrong with patent law in 2013 that it cannot function in a sensible, reasonable way.
Last week, I listened again to This American Life’s “When Patents Attack, Part 2”, and I urge you to do the same if you find yourself with a spare hour. It’s a riveting tale which explains many of the significant problems in the patent system better than I ever could. But, off the top of my head, here’s my short list of issues which need to be addressed for the patent system to be fixed, in no particular order:
- Genetic patents: these should be entirely abolished, for the reason that causing or discovering a mutation in nature cannot and should not be owned by a person or entity.
- Non-practicing entities: a patent should be required to be used in a publicly-available product or service within a certain timeframe — say, two years — or it becomes null and void, and it must be reapplied for.
- Term limits: due to the increasing pace of innovation and discovery, patent limits should probably be much shorter, and extensions should be entirely removed.
- Innovation requirements: similarly, the requirements for level of innovation should be much higher, and should be more rigorously evaluated by experts from corresponding fields of research.
- Overbroad patents: there is a nuance required to reading patents because there are dependent claims and every word matters. Still, a substantial amount of patents seem to get through which are far too broad to be considered protecting a specific innovation or invention.
None of these are radical or revolutionary — indeed, nothing in this post is radical or revolutionary — but this codifies how I feel about intellectual property. It is as much for me as it is for you. I think it’s sensible, practical, and reasonable (at least, I hope it is).
But, as I said above, I have no education in intellectual property law, so my opinions on the subject are inconsequential and probably misguided. If you are an expert in the field, I’d love to hear from you.
Regardless of my lack of expertise, I think the lack of nuance is a major problem when this issue is discussed. Bickering about patents as an entire entity is either unhelpful or should be polemic. If you can’t do the latter, you’re probably just wasting your breath.