[Fsfe-ie] Guardian: Owning ideas. Yhe boom in the intellectual property market will not reap,rewards for us all

[teresahackett at eircom.net]

http://www.guardian.co.uk/comment/story/0,3604,1646125,00.html

Owning ideas
The boom in the intellectual property market will not reap
rewards for us all

Andrew Brown

Saturday November 19, 2005

The Guardian

The difference between ideas and things is obvious as soon as
someone hits you over the head with an idea - so obvious that
until recently it was entirely clear to the law. Things could
have owners and ideas could not. Yet this simple distinction is
being changed all around us. Ideas are increasingly treated as
property - as things that have owners who may decide who gets to
use them and on what terms.

Ideas such as one-click shopping, getting customer reviews on a
website or even putting classified ads on the internet are now
patented, which is to say that somebody owns them - Amazon.com
the first two, Google, the classified ad patent - and anybody
else who wants to make use of them must pay a rent to the owner.
Last week, Amazon was also granted a patent that covers getting
shoppers to review the things they have bought on its website. BT
has tried to patent the hyperlink, Microsoft is trying to patent
XML, a way of writing computer files that is fundamental to the
operation of modern business.

The fight over the human genome and its patenting - and over the
patenting of drugs - is another, and perhaps more familiar front
in the war. Ideas are codified as intellectual property and
regarded as among the most important assets a company can own. As
where things are made becomes less important in the formerly
industrialised nations of the west, the real value comes in the
licence to allow others to make them.

Even facts about the world can, in some cases, become the
property of commercial companies. It was the promise of gaining
patents on the human genome that lured investors into the private
consortium that attempted to sequence it in competition with the
public effort. Laboratory animals have already been patented,
starting with the OncoMouse, an animal whose genome has been
manipulated to ensure that it develops cancer.

Science was one of the first fields in which the confusion of
ideas with things became apparent and damaging. It has always
been one in which ideas and techniques were freely shared. You
might say that any scientific experiment is worthless until it
has been copied - if it can't be repeated, it isn't scientific.
Scientific papers, too, measure their influence by how often they
are copied or quoted in others. But as the practice of science
has grown more expensive, and more commercial, so has the
pressure to patent everything. The public project that sequenced
the human genome, led by Sir John Sulston and Bob Waterston,
defined itself as in opposition to patenting data. This wasn't
just an idealistic stance. They were convinced that without
freely available data the work would flow less swiftly, if at
all, and that the results would be very much less useful. In
fact, the so-called private project run by Craig Ventner used a
method that relied on the availability of publicly sequenced data
as a springboard for the short cuts it took.

Sulston now, after his Nobel prize, spends much of his time
campaigning for public access to scientific knowledge and its
fruits. In a world where material goods are so unevenly
distributed, the effort to lock up ideas and intellectual riches
as well seems to him quite monstrous. The struggle over patents
in science and technology is usually presented as one between
rich countries and poor ones, with big pharmaceuticals on the one
side and almost everybody in the world on the other. It is
certainly true that the governments, the peoples and the
industries of poor countries have fewer drugs than they might
otherwise have because of international patent law. But so do the
big companies themselves. It is not just the results of
scientific inquiry, like drugs, that are controlled as
intellectual property. It is, increasingly, the knowledge needed
to make them or to understand how they are made. Where scientists
once worked over a safety net composed of other scientists'
experiments, they can now have the impression that they are
working over a minefield composed of other companies' patents.

In this world, size is no protection. It just makes you a more
succulent target for enemy lawyers. It is the biggest and most
enterprising firms, whose work is likely to make use of the
greatest bodies of knowledge, that are most at risk. Naturally,
this has a chilling effect on the work that is done. Big
pharmaceuticals must patent everything, if only to be certain the
competition does not do it first. They may, of course, later
exchange patents with their rivals. But that simply helps to
confine invention to the very largest companies, as the smaller
ones have little to trade with.

This is even more true in the software industry. The law of
copyright - and of patents - long precedes computers, which fit
very uneasily into the old frameworks. Neither copyright nor
patent law is satisfactory here, but patents on software threaten
to have the most disastrous effect on the future of programming,
since only programmers can break it. In the beginning, computer
software was neither patented nor copyright. For so long as the
machines had no users, only programmers, this made sense. But in
the mid-1970s, people started to see they could make money out of
software. This is not easy or obvious, because when I make a copy
of your program, you still have the original, which works just as
well as it ever did. Equally, when you make a copy and sell it to
me, it has cost you nothing, so why should you charge me for it
as if it were a limited resource? There is no answer from justice
to these questions. The only answer that makes sense is that
certain arrangements of copyright promote a flourishing market in
software, which is in society's general interest, so it should
legislate for them. Without it there would be no commercial
software industry, or any way to ensure that free software stays
free.

Bill Gates first came to the attention of other hackers when he
objected to their taking his earliest Basic programming language
and copying it, as they were used to doing. He won, and
Microsoft's riches rest on copyright law. But they also depend on
its constant violation. Around every legitimate, full-priced
piece of software hangs a penumbra of pirated versions. Most of
these will be converted, at some time, into legitimate purchases.
But the fact that you can use most MS software for free has been
an important factor in spreading the habit of using it and in
killing competition. The companies that make most fuss about
"software piracy" know perfectly well that if it were entirely
abolished, they would be less well off.

Software patents came along later, and are much more damaging,
because they can be enforced. Copyright protects only particular
program code. It does not - crucially - protect the way that it
looks and works. Nor does it protect the clever ideas contained
within it. In a world where software is only protected by
copyright, competition works like evolution - by incremental
improvement.

Patenting software could stop all that. Because patents are meant
to protect inventions, they apply to ways of doing things in
software. This can be discussed as if it were real machinery, but
in fact it's an idea, or an arrangement of ideas.

The final problem with software patents is that they can be taken
out on business processes, such as Amazon's one-click buying.
Here, what is protected is not even a trick to writing programs.
It is a way of dealing with customers. That is the kind of
innovation the market is meant to spread more quickly than any
other mechanism. Patents on business processes obviously
deliberately slow this process down, and if clever business ideas
can be patented, why not other ideas? There is a man in
California trying to patent movie plots.

US venture capitalists now refuse to back a company until it has
applied for a patent on its business practice, which they will
keep if it fails, as most startups must. If this practice
continues, the chilling effect for the future is obvious. The
first company into almost any field will fail. But if it leaves
enough patents behind it, these may strangle all its successors.
Patenting ideas rewards failure and makes success more difficult.
You can't argue that they are needed as incentives. Bill Gates
made his fortune in a world without software patents - and if
that's not big enough to act as an incentive, nothing is.

There is some evidence that patenting has not slowed down
research into genomes, simply because researchers ignore them.
But they are impossible to ignore in software, partly because the
laws governing infringement are so drastic. The directors and
board members of any company found guilty of patent infringement
are liable to triple damages, personally as well as corporately.
So companies that may infringe patents simply can't be sold until
the patent holders are bought off, and this is almost always
easier and cheaper than fighting the patent, no matter how
worthless. This gives the holders of patents tremendous powers of
extortion. The only defence is for everybody to do it, which
still further clogs up the system.

For most people these concerns may seem abstract - at least until
they listen to music, where arguments about ownership are fought
over all the time in the courts and, increasingly, inside the
gadgets that we use. Only last week, Sony was forced to withdraw
software concealed on some of its CDs that installs itself -
without the owner's knowledge or informed consent - on a
computer, prevents copies being made and breaks the machine if an
attempt is made to remove it. At least 47 recent CDs have been
infected in this way, and one recent survey suggests that they in
turn have infected half a million PCs during the last three
months. Any PC thus infected can be attacked by more obviously
malevolent hackers who can use the Sony technology to install
their own programs on the victims' PCs. But whether it is Sony or
some Russian mafia gang that ends up working through these
security holes, it won't be you, the poor sap who thought he/she
owned the computer and had bought the music.

Legally, of course, we don't buy music, any more than we buy
software. We agree to buy certain, limited rights, which vary
from country to country but which have all been routinely
disregarded until very recently.

In the US, for instance, it is illegal to copy your own CDs on to
your own iPod. Obviously, this is a law that is broken all the
time, or nobody there would ever buy an iPod. The 60GB model
sells for $350 (£200); to fill it up with freshly downloaded
content from the Apple store could easily cost another $25,000.

Just as with computer software, the legal market has broken down
because there is no obligation for buyer and seller to agree on a
price, or even on what is being sold. Computers have made it
possible for both sides to cheat on their agreements. Buyers can
use some forms of file sharing and sellers can write ever more
restrictive licence agreements to make it clear they are not
selling anything, merely renting it out. There are some download
services where the music you have already downloaded will no
longer play if you stop your subscription. The obvious answer is
to pay for it with money similarly protected - special digital
rights money, which would vanish, like fairy gold, when you
stopped playing with the new toy. Nobody would accept payment on
those terms. Why are there companies which think the opposite is
fair?

The answer is that they are operating in a climate where
intellectual property seems to guarantee an endless, effortless
stream of money to its owners. The big content owners have been
determining the world's intellectual property regimes for the
last few decades. By clever lobbying at extraordinarily boring
conferences, they had managed by the late 90s to commit
governments, through the world trade talks, to a draconian
programme of laws extending the notion of intellectual property
to the point where a Norwegian teenager can be threatened with
jail when he writes a clever programme to let him watch DVDs on
his own computer - because he is said to be providing tools to
steal intellectual property.

This is madness. Ideas aren't things. They're much more valuable
than that. Intellectual property - treating some ideas as if they
were in some circumstances things that can be owned and traded -
is itself no more than an idea that can be copied, modified and
improved. It is this process of freely copying them and changing
them that has given us the world of material abundance in which
we live. If our ideas of intellectual property are wrong, we must
change them, improve them and return them to their original
purpose. When intellectual property rules diminish the supply of
new ideas, they steal from all of us.