On Monday, BBC Four screened a remarkable film in its Storyville series. The Internet’s Own Boy told the story of the life and tragic death of Aaron Swartz, the leading geek wunderkind of his generation who was hounded to suicide at the age of 26 by a vindictive US administration. The film is still available on BBC iPlayer, and if you do nothing else this weekend make time to watch it, because it’s the most revealing source of insights about how the state approaches the internet since Edward Snowden first broke cover…
Even those of us who shared his belief in open access thought this an unwise stunt. But what was truly astonishing – and troubling – was the vindictiveness of the prosecution, which went for Swartz as if he were a major cyber-criminal who was stealing valuable stuff for personal gain. “The outrageousness in this story is not just Aaron,” wrote Lawrence Lessig, the distinguished lawyer who was also one of Swartz’s mentors. “It is also the absurdity of the prosecutor’s behaviour. From the beginning, the government worked as hard as it could to characterise what Aaron did in the most extreme and absurd way. The ‘property’ Aaron had ‘stolen’, we were told, was worth ‘millions of dollars’ – with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of academic articles is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.”
The phrase that came to mind when I first saw the indictment against Swartz was Alexander Pope’s famous rhetorical question: “Who breaks a butterfly upon a wheel?” It would be possible to write off the Swartz prosecution (as some have done) as the action of a politically ambitious attorney general, but actually it fits a much more sinister pattern. It was clear that a decision had been made to make an example of this cheeky young hacker and in that sense this grotesque prosecution sits neatly alongside the treatment of Corporal Bradley Manning, not to mention the hysterical reaction of the US authorities to WikiLeaks…
It is useful to recall why patents exist. The system was established as a trade-off that provides a public benefit: the state agrees to grant a limited monopoly to an inventor in return for disclosing how the technology works. To qualify, an innovation must be novel, useful and non-obvious, which earns the inventor 20 years of exclusivity. “Design patents”, which cover appearances and are granted after a simpler review process, are valid for 14 years.
The dispute between Apple and Samsung is less over how the devices work and more over their look and feel. At issue are features like the ability to zoom into an image with a double finger tap, pinching gestures, and the visual “rubber band” effect when you scroll to the end of a page. The case even extends to whether the device and its on-screen icons are allowed to have rounded corners. To be sure, some of these things were terrific improvements over what existed before the iPhone’s arrival, but to award a monopoly right to finger gestures and rounded rectangles is to stretch the definition of “novel” and “non-obvious” to breaking-point.
A proliferation of patents harms the public in three ways. First, it means that technology companies will compete more at the courtroom than in the marketplace—precisely what seems to be happening. Second, it hampers follow-on improvements by firms that implement an existing technology but build upon it as well. Third, it fuels many of the American patent system’s broader problems, such as patent trolls (speculative lawsuits by patent-holders who have no intention of actually making anything); defensive patenting (acquiring patents mainly to pre-empt the risk of litigation, which raises business costs); and “innovation gridlock” (the difficulty of combining multiple technologies to create a single new product because too many small patents are spread among too many players).
Some basic reforms would alleviate many of the problems exemplified by the iPhone lawsuit. The existing criteria for a patent should be applied with greater vigour. Specialised courts for patent disputes should be established, with technically minded judges in charge: the inflated patent-damage awards of recent years are largely the result of jury trials. And if patents are infringed, judges should favour monetary penalties over injunctions that ban the sale of offending products and thereby reduce consumer choice.
And it’s nuts letting this stuff go to jury trial.
Following last week’s verdict against Samsung, the kommentariat have raised the specter of an egregious new Apple Tax, one that Apple will levy on other smartphone makers who will have no choice but to pass the burden on to you. The idea is this: Samsung’s loss means it will now have to compete against Apple with its dominant hand — a lower price tag — tied behind its back. This will allow Apple to exact higher prices for its iPhones (and iPads) and thus inflict even more pain and suffering on consumers.
There seems to be a moral aspect, here, as if Apple should be held to a higher standard. Last year, Apple and Nokia settled an IP “misunderstanding” that also resulted in a “Tax”…but it was Nokia that played the T-Man role: Apple paid Nokia more than $600M plus an estimated $11.50 per iPhone sold. Where were the handwringers who now accuse Apple of abusing the patent system when the Nokia settlement took place? Where was the outrage against the “evil”, if hapless, Finnish company? (Amusingly, observers speculate that Nokia has made more money from these IP arrangements than from selling its own Lumia smartphones.)
This morning’s Observercolumn about Richard Posner’s landmark ruling.
What brings Posner to mind this Sunday morning, however, is not his views on obesity but on intellectual property. You may have noticed that in the last few years the world’s biggest technology companies have become lavish patrons of the legal profession. Apple, Google, Samsung, HTC, Microsoft, Oracle, HP, Amazon and others have being suing one another in courts around the globe, alleging that they are infringing one another’s patents. The resulting bonanza for lawyers has long passed the point of insanity, but up to now the world’s courts seem powerless to make the litigants see sense. As a result, judges find themselves allocated the role of pawns in what are effectively business negotiations between global companies.
Until now. What happened is that Posner, in an unusual move, got himself assigned to a lower court to hear a case in which Apple was suing Google (which had purchased Motorola in order to get its hands on the phone company’s patent portfolio) over alleged infringement of Apple’s smartphone patents. Posner listened to the lawyers and then threw out the case. But what was really dramatic was the way he eviscerated the legal submissions. At one point, for example, Apple claimed that Google was infringing one of its patents on the process of unlocking a phone by swiping the screen. “Apple’s argument that a tap is a zero-length swipe,” said Posner, “is silly. It’s like saying that a point is a zero-length line.”
We’re now at the stage where we should be getting the next wave of disruptive surprises. But – guess what? – they’re nowhere to be seen. Instead, we’re getting an endless stream of incremental changes and me-tooism. If I see one more proposal for a photo-sharing or location-based web service, anything with “app” in it, or anything that invites me to “rate” something, I’ll scream.
We’re stuck. We’re clean out of ideas. And if you want evidence of that, just look at the nauseating epidemic of patent wars that now disfigures the entire world of information technology. The first thing a start-up has to do now is to hire a patent attorney. I had a fascinating conversation recently with someone who’s good at getting the pin-ups of the industry – the bosses of Google, Facebook, Amazon et al – into one room. He recounted how at a recent such gathering, he suddenly realised that everyone present was currently suing or being sued for patent infringement by one or more of the others.
Reinforcing the fact that Chris Dodd really does not get what’s happening, and showing just how disgustingly corrupt the MPAA relationship is with politicians, Chris Dodd went on Fox News to explicitly threaten politicians who accept MPAA campaign donations that they’d better pass Hollywood’s favorite legislation… or else:
“Those who count on quote ‘Hollywood’ for support need to understand that this industry is watching very carefully who’s going to stand up for them when their job is at stake. Don’t ask me to write a check for you when you think your job is at risk and then don’t pay any attention to me when my job is at stake,”
This certainly follows what many people assumed was happening, and fits with the anonymous comments from studio execs that they will stop contributing to Obama, but to be so blatant about this kind of corruption and money-for-laws politics in the face of an extremely angry public is a really, really, really tone deaf response from Dodd.
Nicely complimented by a Monday Note by Frederic Filloux on how illicit copying is an intrinsic part of the digital ecosystem. That suggests, he maintains, that we need to start being more imaginative in the way we combat ‘piracy’.
One of the chapters in my new book (out on Thursday next though Amazon seems to be already selling the Kindle edition) is about the potential of computing and network technology to create systems for perfect surveillance and control. I’ve argued that the threat comes from two directions: one is the Orwellian one that we all know about; the other comes from companies like Apple and Google and Facebook. In both cases the connivance — tacit or active – of democratic governments is required. This anguished piece by Thom Holwerda suggests that the penny has dropped for him.
Here we are, at the start of 2012. Obama signed the NDAA for 2012, making it possible for American citizens to be detained indefinitely without any form of trial or due process, only because they are terrorist suspects. At the same time, we have SOPA, which, if passed, would enact a system in which websites can be taken off the web, again without any form of trial or due process, while also enabling the monitoring of internet traffic. Combine this with how the authorities labelled the Occupy movements – namely, as terrorists – and you can see where this is going.
In case all this reminds you of China and similarly totalitarian regimes, you're not alone. Even the Motion Picture Association of America, the MPAA, proudly proclaims that what works for China, Syria, Iran, and others, should work for the US. China's Great Firewall and similar filtering systems are glorified as workable solutions in what is supposed to be the free world.
The crux of the matter here is that unlike the days of yore, where repressive regimes needed elaborate networks of secret police and informants to monitor communication, all they need now is control over the software and hardware we use. Our desktops, laptops, tablets, smartphones, and all manner of devices play a role in virtually all of our communication. Think you’re in the clear when communicating face-to-face? Think again. How did you arrange the meet-up? Over the phone? The web? And what do you have in your pocket or bag, always connected to the network?
This is what [Richard] Stallman has been warning us about all these years – and most of us, including myself, never really took him seriously. However, as the world changes, the importance of the ability to check what the code in your devices is doing – by someone else in case you lack the skills – becomes increasingly apparent. If we lose the ability to check what our own computers are doing, we’re boned.
Thom also points to Cory Doctorow’s chilling talk at the Chaos Computer Congress in Berlin, entitled “The coming war on general computation,” which sets things out pretty clearly.
(Transcript here for those who are too busy to watch all the way through.)
One of the most depressing things now is the discovery that Obama seems not just clueless and passive about this stuff, but that — when push comes to shove — he really sides with the forces of darkness. If SOPA ever makes it through Congress, for example, my guess is that he will sign it. After all, as Thom points out, he signed the NDAA 2012.