Entries by Paul Lancefield

App-stores have broken the online payments psychology. Where free apps once lead the charge, commercial apps are finishing it. Users now expect to pay and crucially, want to pay for a higher quality experience. With a few notable exceptions, free apps are bombing whereas, apps which charge a reasonable price are flying high. They are the keepers.

iPhone App Store. Apple don’t provide number of downloads per app. However I have taken number of ratings given as an indicator of user interest. Comparing the top ten paid apps and top ten free apps on this basis is interesting.

That’s in the app-space but it can surely only be a matter of time before the same trend crosses over into the content and news space. Meanwhile, as content publishers are bleeding money the free web remains a big problem for the publishing business. Undoubtedly, for those who know how to exploit it, it is becoming an opportunity. But exploiting the opportunity will mean knowing how to generate not click-through but tick-through (transaction click-through - e.g. a transaction occurring as soon as a link is clicked, or one quick acknowledgement click after).

The App Store has shown, once there is a sizeable community able to pay for access to content and a system supporting micro-transactions, the user will pay. Micro-payments have, of course, been a solution sought for so long, now they are actually starting to happen the phrase has gone out of fashion. The secret to the new content marketing strategies will be, like for native-apps, to make the charge low-enough and the quality of the experience high enough. And that of course, is the major hole that can now be plugged by the confluence of web, tablet, app and HTML5. The opportunity for the incumbent old media content business is to leverage scale to increase production value beyond that which the smaller player can hope to achieve.

Of course, just as there has always been academic research, and so too there has always been a sophisticated early adopter audience happily and diligently curating their own news through twitter and who will want little else. But the commerce-repellant power of free content via self-curation through self-configured “friends” feeds is, IMHO, greatly overstated. Personal social news feeds will remain hugely important and will of course continue to provide a very important channel into free content but early adopters are by nature more analytical, thoughtful and dynamic than the majority. Much of the rest of the world wants simply to hang-out online with friends and get a bit of entertainment after work and for these users tick-through will naturally become an important portion of consumption.

As Zuckerberg already knows, there is value in exclusivity and once content is available behind an easy micropayment, many many friends will be all too eager to cough-up just to be in the know, stay in the club and share the super-produced experience. Whoever can deliver content, engage and entertain the audience, will succeed. The holly grail will be to establish a brand with sufficient pull and low-enough prices the user will tick-through, along with the community of friends, as easily as sending a text. The adroit marketeer will lead regular tickers to ultra-easy to join subscription packages. We can expect to see many new high-production value content properties emerge, supplementing free to access content with highly produced lead-ins to the paid for content.

Of course, a potential tick-through payments facilitator with enough stored-energy to dwarf even iTunes in this brave new world is Facebook. Indeed, stopping Facebook is, in my view, the primary driver behind the structure of Apple’s 30% content revenue cut. All the time Apple are king of the micro-payment facilitator hill, they can’t be ignored and the universal price requirement means they can’t be under-cut.

Currently the big four facilitators are:

1. Apple (via iTunes) the current doing-it-for-real king
2. Amazon, also doing it for real but not yet as a subscriptions micro-payment solution
3. Facebook, huge, huge, huge potential but not yet with enough data on plastic
4. Google (via Android App-store) - shouldering their way into the party but still the new boy

And there are some outside bets as well:

1. Microsoft xBox Live - transformation and broadening of brand positioning a certainty methinks
2. Twitter - If only they can figure out how to get the data off your plastic
3. Netflix - Making a head-start with original, high production value content - a key emerging strategy, with a sniff of a chance of becoming a universal facilitator

In my judgement the most important sources of tick-through generation (and I’m willing to bet increasingly, in the content business, little else will count) are in order of importance:

1. Social site referral
• Facebook
• Twitter
2. Curated content hub
• News
• e.g. Huffington post
• Traditional news media on the web
• Social curated
• OTT TV
3. Web search
• Google
• Bing

I have put web-search in third place and don’t include advertising at all due to a combination of fact and logic. Social is now top in hits. Search implies people have something to find, but as old style web-time gets transformed further into entertainment and social time we used to spend exclusively in front of the TV and with friends, the known “branded content” hub will become increasingly the site of first recourse. From the tick-through standpoint, content hubs will triumph (poor Yahoo! getting on the party-boat departing 13 years before the time on the invite). Advertising doesn’t figure because advertising click-through is a tiny fraction of clicks from social referral, curated content and search results and so as a source of tick-through generation will hardly count (though paid positioning in a content hubs will count - so perhaps we should call it “new advertising”).

As a final thought, Apple, by implementing their 30% rule, have ensured a vicious competition for exclusive content is bound to break-out. Exclusive content will be hot property desirable for its ability to draw users onto alternative micro-payment facilities and hand over the details on their plastic.

Paul Lancefield on Twitter

Is the Fukushima incident, perversely, going to be a positive thing for the Nuclear energy industry? Sounds crazy?

1. Major disaster with reactors sited near a highly active fault line in the earth’s crust


2. Earthquake and subsequent Tsunami billed as a “once in a thousand year event,” overwhelms reactors and damages crucial cooling systems


3. Even though there has been partial meltdown and the workers have been exposed to unacceptable and life threatening levels of radiation, it very much appears as though there will be minimal wider implications for the general public


4. Most reactors aren’t - stupidly - sited next to major fault lines in the earths crust and future reactors as well as having safer designs can simply, as a matter of policy, be sited in safer locations


5. Apparently illustrates the level of Chernobyl fall-out was a function of older less-safe reactor design

This still has a way to run, but it appears to me to be shaping-up this way.

Update - George Monbiot reaches similar conclusions on Monday, 3 days later.

The terrible aftermath of the Japanese earthquake shows human capacity to fail to act on the basis of objective risk assessment truly knows no bounds.

We don't need an earthquake to illustrate this weakness in human psychology. It is a weakness that affects us all, equally, everywhere. People whose homes are situated over a granite rich geology are sometimes exposed to Radon gas. Years of statistical data has confirmed it is at least as bad for your health as smoking. There is a simple remedy, which involves fitting small silent extractor fans in the basement or in the wall under the floorboards to stop the gas (which is heavier than air) from collecting in your home. In the UK these extractor fans are given out for free, funded by government, and there have been awareness campaigns at various times in areas that suffer from this problem. Yet few people use the fans. Even if they have been installed, few bother to switch them on. Proportionately more people give up smoking, an addictive habit, than "Radon dwellers" use the fans. This flies straight in the face of the known consequences that come from exposure to Radon gas. Like smoking, it causes cancer and unfortunately it is all too often deadly. Death from Radon induced cancer is high amongst people who live in these areas. But the problem is, when a deaths occur it isn't possible to attribute that particular death with certainty to Radon. It seems we have a capacity to ignore risk all the time it is abstract, e.g. when we can't see the downside and causality right in front of our eyes.

Worse, our capacity to ignore risk goes up greatly when to do otherwise means we would have to go against the social current. Let me demonstrate the point with an imagined scenario. I'm now imagining myself freshly promoted as head of human resources in Oracle. I have a statistical background in risk analysis. In my first board meeting and I raise an issue. A major risk factor. Oracle's headquarters are built on reclaimed land by the edge of the Pacific ocean right next to one of the most active fault lines in the world. In the event of a major earthquake reclaimed land though a solid, has such feeble binding properties it can become liquid and buildings can sink into it in unpredictable ways. Also being reclaimed land, it is on what is basically a large flood plain. So an earthquake could entomb the car park exit just as inhabitants are seeking, in case a Tsunami is on it's way, to get to higher ground. But imagine what it would be like, any month before the Japan disaster, to sit before a board and seriously raise the question as to whether the headquarters should be moved? I can't speak for Oracle, but I imagine in most situations, at most companies, doing so would be career suicide.

I apologise to Oracle employees who may read this if, given current events, raising the question might seem to be in poor taste, but isn't that actually part of the problem? Isn't the fact the discussion is alarming a very part of the social mix which ensures the big questions are rarely raised and made a real factor in policy decisions? A toxic mix of social pressure and inability to relate to the abstract buries our capacity to act on risk and lives can be put in danger as a result. The proof is in the fact our skewed view of risk means there is insufficient appreciable negative affect on the value of properties in high-risk areas. High-risk properties tend to be worth just as much as property further up the hill out of the flood or Tsunami zone. Of course the added risk is reflected in the cost and terms you can get in your insurance policies though.

It's important to understand, though money is often a factor, the issue isn't at root about money. The same perversion of rationality exists in decisions made within government, where the individuals making the decisions have little to gain. Mostly it crops-up when decisions are being made in a powerful social context, where there is a "social tide" a rational decision may have to swim against. We are social creatures and it is difficult for us to isolate our decisions from concern over what the rest of the room will think. When such social contexts also involve large amounts of money, the problem is greatly exacerbated. "Group think" is much more pervasive and harder problem to tackle than many care to acknowledge.

The siting of nuclear power stations in Japan would have been precisely this kind of a decision. When as a politician, or planning department official, you have lots of intelligent people telling you how you can make the plant safe, huge pressures on budgets and huge pressures from the public to avoid certain areas, you will quickly find yourself looking at that tract of reclaimed land or the sparsely populated flood plain. It's only for a few brief months after an event like the Japanese Tsunami, that proposals, such as that the power-station or head-office should be sited further up the hill or further away from the fault line, gain traction, and that is precisely because it is only then they are not swimming against the social tide.

We all know attitudes will revert once our collective guard goes back down. Social mores will always prevent us calling out the elephant in the room. In no time politicians like the last UK government’s John Prescott, will go back to sanctioning crazy actions like building houses on reclaimed Thames Estuary floodplains.

But here is a final point for your consideration. The question of the safety or otherwise of nuclear power generation is being raised again. But our ability to assess and act on risk objectively is so compromised by group/social psychology the weakness cuts in two directions. Now there has been a disaster and the risk is no longer an abstract question (at least for the next few months), suddenly, the social tide has turned and all nuclear power must be bad. From no action we can easily go to overreaction. Angela Merkel has called a halt and re-assessment of the German program for nuclear energy and the Swiss are doing the same. This may be appropriate given the terrible events in Japan, but let's hope group-think doesn't strike again. The stand-out point is that quite evidently building a nuclear reactor smack-bang next to one of the most active fault lines on the earths crust, on the coast, and at sea level at height where it was bound to be overwhelmed by a powerful Tsunami, was always simply and undeniably, a terrible idea.

Paul Lancefield on Twitter

I was recently reading a posting by Matt Assay on the Register where he is encouraging open sourcers to unite in a campaign against the evil Apple empire and it’s machine of destruction the Deathstar AppStore. In it he asked “Where’s the rage, open sourcerers”

I responded to Matt with a comment to his post:

“Maybe the throngs of developers developing open source solutions also include a large number happy to finally have an outlet where lower pricing and greater reach mean they can work on their own terms and fairly earn from their work. I'm not saying there are no problems with the Mac AppStore, but the ecosystem is a huge boost to the small developer team and I'm sure, on the Mac at least, will be eating into the share of time spent doing open source projects. Perhaps that's why a revolutionary movement hasn't spontaneously erupted. It appears most end users are very happy that commercial software is being marketed at much lower prices than before ” *

*Spelling error corrected (oh the joys of web comments).

Now I have a lot of sympathy with Open Source projects, love my Drupal installations and think contributing to open source projects is a really good idea. But I do also think there is a sizeable group of radicals in the movement and though radicals shake up the status quo, challenge incumbent models etc., (which is good), some of these radicals have a tendency to overextend the areas to which Open Source software provides a good solution. There are some I have spoken to, who tend to think, in the longer term, open source provides the only solution and see anyone who disagrees with them as something to be opposed.

I don’t think it has to be that way. I think Open Source and proprietary commercial solutions can quite happily cohabit even on a single project and indeed greatly strengthen one another, if only a particular model or pattern is followed. And I have come up with a model which I think supports that solution. But before presenting the solution, let me outline what I think is a not inconsiderable problem area for Open Source.

The simple fact is open source projects are often weak when it comes to human factors design. At least where such projects aren’t being bankrolled by an organisation or billionaire space tourist. Things have improved of course. The recently released Drupal 7 for instance, is leaps and bounds ahead of the previous incarnation. But still the suspicion remains that Open Source projects will always lag behind commercial projects in this regard and the gap was, of late, greatly widened thanks to the high standards Apple has set for iOS devices.

Unfortunately, all too often, the co-operative model conspires to subvert the visual and human factors design process and anyone who has had to do graphic design and deal with customers inputting an opinion before a final result is ready, will know precisely why this is the case. The psychology of the design process simply doesn’t map well to co-operative working. Open source product designers (if that is the right term) also have to be good and co-operative citizens but the very best human factors design has rarely, if ever, been created as a result of this co-operative model (there is co-operation of course, but also the chief designer in charge). This is a fascinating topic deserving of it’s own post and I’m sure there will be a project out there somewhere that runs counter to the generalisation. However, I have yet to see such a counter example, and in any case, even if one does exist - unless there are many many such examples - the generalisation still holds.

Mark Shuttleworth agrees on this point too. It is why he has started the Ubuntu Unity project to overhaul the UI and interaction design of Ubuntu. It is why Unity is being defined by a tight knit team under his direction. Shuttleworth has high ambitions for Ubuntu and he knows that if it is to be universally adopted it must match or even exceed an Apple like level of UI design excellence and that is his stated aim. But Unity project is running into resistance within the Open Source community and the reason for this is by attempting to apply the kind of top-down design approach Shuttleworth knows a best in class UI requires, many of the worker bees feel the hive is being invaded by something foreign and unwelcome. Whether they will swarm and attack is yet to be seen.

So the jury is out, Unity, it may not be. Richard Hillesley gives this excellent analysis of the issues if you haven't seen it already.

This set me wondering if there is a middle way. And having pondered the problem a while, I have come up with what I believe is a solution. I believe there is a licensing model which will allow all many of the commercial ecosystem advantages to be found in e.g. the Apple Appstore whilst at the same time benefiting from the profoundly powerful strengths of Open Source.

The trick, I believe, is to create a license which recognises a different status for UI code and back-end code. A model where user interface code can be closed, but back-end code open, and the two can co-habit quite happily and harmoniously provided there are clear cut criteria that can be applied to qualify any given piece of code as one or the other. And the thing is (at least on my analysis), this can be done. Here’s how I think it could work. For convenience I’m going to call this the Open Interface license:

The unique feature of an Open Interface license is that any modules providing a published public API (e.g. machine to machine interface) are irreversibly open. On the other hand any modules that don’t publish an API, but that nevertheless themselves use an Open Interface public API, may remain closed and may be wholly commercially owned but must still irrevocably carry the Open Interface license designating them as part of an Open Interface project.

But surely, it is natural to object, large swathes of development can still be kept closed? If you think about it, the answer is no, they can’t be. It is impossible to develop any major league software solution if you don’t publish API’s. One of the things that has become very clear is that any commercial software more meaningful than the most basic and simple app, has to provide an API. Accounting packages, Facebook, Word, Photoshop, you name a project and you will confirm this statement. Under this proposed license, any modules such an API is dependent on and the API itself, must be open and public.

The key here is to understand any closed modules can only be kept closed if they don’t provide a machine-to-machine interface or are a build (or execution) dependency for other modules which provide such. If you follow the logic through, it becomes clear the only area it will be possible to have closed software is where that software supplies a user interface. It will be possible to have closed API’s below that, only they are not public and not either a mandatory or optional requirement of public published API’s. As soon as an API is published or made public, the commercial entity then no longer has exclusive rights over that code. This definition of closed versus open is then not a technical definition. It is a social one - and this is a big strength.

I’ve executed a SWOT analysis on this proposal and IMHO this license model comes out looking pretty good:

Strengths:

Provides for more significant commercial ownership model that e.g. mere MVC re-skinning would allow and so provides much more certainty for commercial enterprises to be able to exploit and benefit from open source as equal members of the community but without subverting or compromising the open source contribution.

All project members know where they stand with regard to the other members, what is acceptable on the project vis-a-vis commercial interest and what is not (this is a must for commercial and non-commercial to co-exist)

Provides a clear logical definition of what needs to be open sourced and when (and importantly, legally definable)

Allows for a company to provide an “Apple like” level of experience on top of open source software in a way not to dissimilar to how OS X has been built on top of GNU and allows that company to charge for it without fear they may be forced to give away their investment and commercial advantage. However they know the rules of the game and that this applies only to modules without public API’s.

It maintains a clear pool of open source software where it matters the most and provides the most benefit; backend API’s and system level functions

Open source can be seen as a social benefit. Most if not all the social benefit can be preserved on this model. Pure open source UI’s can also be delivered for any given project.

Reduced maintenance costs

Arguably greater security (open source projects are good at finding and patching security holes)

Greater commercial traction will mean business is more regularly co-opted into supporting the open source level of development

Weaknesses:

Loss of opportunity top to bottom proprietary stack acting as a barrier to entry for competitors (reduced hight of barrier to entry)

Unfortunately and undoubtedly there is a significant disadvantage with this proposal. The license may well be incompatible with existing open source licenses, so it is unlikely it could be retrofitted to current Open Source projects (this is akin to the “Fragile Base Class” problem built into some object oriented languages!). It may be possible to start some new developments on top of some existing open source license code if there is not dynamic loading and linking - but controversy still dogs the distinction between the definition of these two things.

No opportunity to charge for lock-in or maintain lock-in (of course this weakness is a strength from the client or customer standpoint but I put it here in the interest of being comprehensive)

Patent ownership will be incompatible with the open modules parts of any Open Interface license (similar to the last point, this will be viewed as a strength by many)

Opportunities:

As of now potential first mover advantage for projects/companies adopting this model

Savings on maintenance costs can be directed into perfecting UI and other projects

Greater leverage for smaller businesses to compete with big business

Commercial companies can forge closer ties with a user community on a productive and non-confrontational platform

Greater opportunity to acquire customers fearful of lock-in and who also want to deal with well-founded commercial concerns

Threats:

Reduced barrier to entry may result in more entrants after a project succeeds (however remember this works two-ways and there may be opportunities also)

Since the distinction between public API’s and private API’s is whether they are publicly published or not, companies may try to cynically exploit this distinction by declaring private API’s and giving a nudge and wink to select customers that they may be used. It should be noted however, this would not provide a powerful basis for an enduring business relationship and would remain a marginal case (or edge case) albeit an unwelcome one. There could be no legally binding contracts around such API’s if they are not declared public. It would be stipulated in the Open Interface agreement that any API’s made subject to a contract with outside parties, would be by definition open and would count as published.

A business may try to cynically exploit the social definition of a public API’s by forming special closed or secret business relationships. The license would need to include a comprehensive definition of the boundaries of a single commercial entity for the purpose of what can be counted as a private versus a public API. There may again be some unwelcome edge cases around this definition because it is almost impossible to legislate for all eventualities. However that such edge cases may exist wouldn’t invalidate the model in any significant way.

Paul Lancefield on Twitter

If you haven’t already done so, now is the time to look at HTTP Live Streaming. HTTP Live Streaming is one of those protocols that comes along and makes so much sense you find yourself asking why hasn’t this been done sooner. It solves a problem that besets all device vendors equally, e.g. how to enable website and content owners to easily get video to devices. The problem is there is no current universal solution that works across all devices. Currently still web services on the Open Internet have to selectively match video delivery mechanism to device type. This situation is intolerable in today’s media rich world. More and more businesses and services want to deliver video and don’t want to have to go through a straightjacket service like YouTube or Vimeo to do so. Nor do they wish to have to pay video hosting fees for ad-hoc low volume video serving. HTTP Live Streaming is a massive contribution to solving this problem.

Indeed HTTP Live Streaming makes so much sense I suspect adoption has only been slow because the parties that should really have been most interested haven’t bothered to look out of fear it is an Apple proprietary protocol and part of an Apple strategic play that will in some way disadvantage them. If that’s you, it’s time to look again. Like webkit before it (which has been adopted by Chrome), it has been put forward for standardisation and, when you look at the details, it is a true candidate for such. There is nothing about it that is inherently Apple-ish or iOS-ish other than the fact Apple have implemented it first because they needed a practical solution - so if you fear a strategic disadvantage - you have already suffered it and it isn’t about to get less if you fail to act on this protocol.

Here are some points to consider:

- It is already implemented by Apple on iPhone and iPad and OS X and has been proven to be a highly effective protocol for video delivery

- It is being adopted by Android in Honeycombe

- It is being adopted by MS through Silverlight and there is an MS supplied IIS plugin called Live Smooth Streaming - this is a slight variant but both Apple and MS are inputting and co-operating on the standardisation process

- It is being subject to ISO standardisation and will be published as the Dynamic Adaptive Streaming over HTTP (DASH) protocol

- It’s easily implemented on Apache and IIS Webservers

- It has the best chance of getting video through corporate firewalls because everything is delivered using HTTP

- It is codec agnostic providing simply a transport technology solution - so the problem of multiple video formats, whilst remaining can relatively easily be solved through throwing storage space at it and encoding in multiple formats. Though this isn't ideal it's an easy solution and much better than the current situation and won't require completely different delivery mechanisms to be employed to most effectively target all devices

- It supports a very simple and effective mechanism which allows the client to adapt the video rate to match changing network conditions - so it’s great for mobile devices

- It is elegant and simple, and much more efficient than might at first be thought

- Professional tools required to use it are readily available at no charge

- It allows all-comers to serve video without any specialist video kit and as such is IMO the perfect OTT video transport standard

- It supports the delivery of video with DRM yet still rather cleverly supports the insertion of interstitials without the need for re-buffering video content at the transition from the interstitial to the main video content (this is a not-inconsiderable problem to have solved)

- With regard to the above point, interstitials can be selectively targeted per client whilst fault tolerance and load balancing can still be supported through manipulating the open and easy to parse manifest file

- The standard and tools are open enough and the protocol straightforward enough, a reasonably skilled web developer can customise how it works (again through the manifest file) and learn most of how it works in a morning

- It supports Live Event Streaming and as well as the streaming of Archived Events

- Since it is codec agnostic - it leaves the whole .h264 v WebM debate untouched (which is a good thing or it would never get universal buy in)

- THERE IS NO OTHER STREAMED VIDEO TRANSPORT SOLUTION THAT LOOKS LIKE IT WILL BECOME UNIVERSAL TO ALL PLATFORMS/DEVICES AND THAT IS SO EASY FOR THE CONTENT OWNER TO IMPLEMENT - unless you include straightforward video file download - which I don't

If you ask the question, “how do I get this video viewable on as many devices as possible?” It stands out as the obvious easiest to implement solution outside of the above mentioned YouTube and Vimeo straightjacket style solutions where you lose full control of your IP. The only reservation is that it isn't quite universally a live option as yet.

Anyone looking at OTT service delivery has to know all about this protocol. Now it will be available on Android and Windows as well as iOS it seems unavoidable anything other than universal adoption can result. I would suggest now is the last opportunity to make a bet on this protocol succeeding before it becomes totally blindingly obvious to the world it will do so.

Paul Lancefield on Twitter

So the MPEG LA patent platform, whose members include the mighty Apple and Microsoft are seeking to establish if they can sue Google, who are establishing a rival Web M standard and promising to give it to the world at no charge. It’s perhaps unsurprising whose side the Tweet-Blog-O-Sphere is on. Indeed, read almost any comments on Patents these days and you would be forgiven for thinking the system has been created by big business, not to in any way foster innovation, but to cr*p all over the small guy and allow lawyers in their employ and backed by an apparently endless supply of cash to force anyone challenging them to enter into a competition where the object of the competition is to see who can last longest pissing cash onto a burning fire. One obvious problem being that for most non-corporate organisations and ordinary people don’t have a cash supply that looks like anything other than like a home with furniture and TV's inside and children living in it.

So patents are bad right, and MPEG LA is just more evidence that is so? Well no, they are not. We have to be very careful not to throw the baby out with the bathwater. Patents are a good thing, indeed I would go so far as to say, overall, they are a very good thing. A subset of patents, of the pure software kind, tend to be more problematic than the rest, but still, if (and this is the crucial point - so anticipating in advance the flames this article could stoke - don't bother unless you really understand I have said "if" here), I say again "if" they are treated properly by the patent authorities they do some good. The crucial point here being that currently they are not treated properly by the system, not even close. I argue this as someone who started up a patent intelligence business a few years back and did business with a blue-chip client in the European technology space with a large portfolio of patents. While I’m no legal expert, I am giving a considered opinion. I’m not firing from the hip.

To understand how I can begin to defend software patents we have first to go back over some of their history and understand why they now have such a bad wrap. Back in the 80's and much of the early 90's it was common knowledge that you couldn't patent software. Except it wasn't knowledge, it was actually wrong. It was possible, but it hadn't been done very much and there hadn't been test cases to prove software patents could hold water and there was a widespread somewhat misplaced belief they would not. Then during the early 90's there was a series of rulings in the US which tipped the balance. Some notable large corporations woke-up to the fact patents could be applied for and would be granted - the most notable of all being IBM and they started filing en-masse.

BUT, by this time, with regard to patents, the software space had become quite unlike any other technology space. In fact there were a number of factors that would combine to turn the whole enterprise into the grade-A disaster zone that would lead Amazon’s Jeff Bezos (who got the infamous one click patent granted) to do an about turn and criticise the software patent system at length and in depth. And now most of the non-corporate world whole heartedly agrees with him. Mention software patents to a lay-tech audience today and you are quite quite likely to be greeted by hisses boos and run an increased risk of assassination.

It’s worth looking briefly at each nougat of disaster which has contributed to this sorry state of affairs. First, during the 90‘s, the rush to apply for software patents came to resemble the privatisation of state assets by Russian oligarchs in post communist Russia. Surely I’m over egging the cake? Not at all. PriceWaterhouseCoopers have suggested intangible assets make up over 60% of the value of a company (at least in the UK, we can assume more for tech companies in the US), an estimated 70% - 80% of that value is attributable to patents and tech takes up a full 20% share of the US economy alone. Since the US economy is some 10 times the size of the Russian economy, my back of the envelope calculation estimates some 1.1 trillion of the value of the US economy to be attributable to tech sector patents. The share attributable to software patents in particular is difficult to judge but if you consider the biggest tech companies in the US are currently Apple, Google and Microsoft and a substantial proportion of their patent applications are for software, you get the picture. By any measure, the value of patents is a very, very big deal.

By the time business woke up to the fact software patents would be granted, unlike for any other area of the patent database, there was a massive hole. In other areas, patents were applied for as technology advanced and the patent database always reflected a general understanding of where the leading/bleeding edge was at. So in most (hardware tech) industries the culture of identifying patents evolved and was accepted.

But in the software industry, the vacuum on the patent database was balanced by an even bigger body of existing practice with lots of programmers/engineers happily co-operating and advancing the status-quo. Being software, the state-of-the-art for that body of practice was poorly documented and frequently maintained purely in the social domain, passing from brain to brain.

Following IBM’s lead, big tech companies, started to make a patent “land grab” and now the once bereft database is full. Along the way many patents have been granted for techniques and practices that have long been employed by the software industry. Now a simple Google search on the phrase “software patent” is sufficient to show this has resulted in a massive amount of indignation, hatred even.

Work I once did with a US supplier gives perfect illustration to the practical consequences of the resulting problem. A number of years ago I was working in a European company and wanted to implement a Program-Grid in a European Electronic Program guide product I was responsible for delivering (A Program-Grid shows TV channels in rows on the first column on the left and TV shows over time along each row on the right). However our TV software supplier, though they would have liked to be able provide us with a grid, was stymied by a cluster of US patents covering Grid functionality. As a result they wouldn’t provide an example of a grid working and we weren’t sure the software could support it. More than that, they wouldn’t talk about the possibility of implementing one at all. The way they evaded discussion seemed, by European standards, ludicrous. They literally blanked conversations in which the term “Program-Grid” used, changing subject as though it hadn’t been uttered at all. I can only conclude this behaviour was a direct function of the level of fear that exists in the US with regard to possible legal tangles and the possibility of being subpoenaed. I can’t help but think European employees would have sprinkled copious nudges and winks into the conversation, but I have to say the staff of this US supplier were always absolutely, and impressively consistent in avoiding doing so.

One day, one of their employees did however, without even the slightest hint of knowingness, show me how their software could be used to navigate a “plant-planner” with the months the plants would be in various stages of growth (seed, shooting, in bloom etc.) along the x axis of a grid type display and different types of plants on each row. This wasn’t shown on the TV Set-Top box we would be deploying but rather was shown on a PC running the same layout engine the STB used. Hmmm, I thought, this plant planner software can be rewired so it can display a grid of TV program data. So it was extremely helpful to know the software could run a plant-planner.

For me, this story illustrates in detail all that is wrong with Software patents as things stand. A Program-Grid is a specific instance of a more generalised design-pattern. The same pattern was already employed in software from spreadsheets to databases to play-out lists at broadcast headends, to train scheduling systems. Using this pattern more specifically, to display a time based grid of TV programs on a STB may have been a new specific application, but the time-grid pattern almost certainly wasn’t (proving that with paper based documentation of the state-of-the-art when the patent was applied for was a different thing though). The very fact plant-planner code could be used as a TV Program-Grid simply by changing the data piped into the grid, gives perfect illustration to this point.

The patent examination process has all too frequently wholly and manifestly failed to pick up on this kind of fatal weakness in software patents. Whilst usually thorough and skilled, examiners aren’t sufficiently trained in the process of generalising the nouns in the software patent claims and seeing what the actual functional design is that is being claimed (As an aside, I believe the best way to do this is to employ object modelling tools and techniques. The software architect process where systems are modelled using objects and decomposed into more general “inheritance” structures, provides a great technique for formally identifying precisely this kind of problem).

Most usually it is reasonable to assume the nouns used in Patent claims have been made as general as possible to make the patent as broad as possible. It doesn’t so often occur the other way-round. Fail to “see-the-trick” and you will fail to see there is no substantial technical merit in the new features. In the case of the Gemstar grid patents, when subject to challenge and further scrutiny, it turns out the courts, agreed with me. They have now been struck down in a number of territories.

But still the patent database “land-grab” resulted in many such patents being granted. And it is is now a huge problem for the tech industry as this figure probably runs into thousands, quite possibly tens of thousands. The very fact they are granted creates FUD (Fear Uncertainty and Doubt) and FUD is only a friend of big businesses with deep pockets. To understand the strategic power it conveys and how it gives advantage to the corporate behemoth, just consider this. If a small-guy has a questionable patent that can probably be turned over in court and goes to a big-guy and says “I have a patent and I can hurt you with it”, his approach will have little or no effect. Indeed the big guy may even welcome it, knowing the small competitor will suffer disproportionately with the outlay of lawyers fees. On the other hand if the big guy goes to the small guy, with an equally dubious patent, saying the same thing, the small guy has a terrible burden to bear. FUD is win-win for the big guy (and WIN-WIN for the lawyers).

If you didn’t already have a strong opinion on software patents, you may by now be wondering why the hell it is I am arguing for them.

The answer is, in my view, everything I have discussed so far that is wrong with software patents, is a problem relating to how they have been implemented. Not a problem intrinsic to the very notion. I know many people will have a disagree with this, but there are I think several important points that are consistently missed and misunderstood in the whole debate.

First, note how the number of “stupidly simple” software patents the media is reporting has gone down considerably from the days when it seemed every month brought a new equivalent to a Gemstar Program-Grid patent, Amazon one-click patent, or BT hypertext-link patent. Yes there are still the headlines, but in most cases delve into the detail and you will find what is claimed is actually quite specific, often (dare I say it) has merit and doesn’t put the well established practices of entire industries at risk. This is because the morally dubious patent database in-filling process is now complete. The database is now full up to the state-of-the-art and the gaps are gone. This isn’t to any measure justification for the bad patents that remain granted and unfortunately the database remains a terrible mess but moving forwards the same opportunities to grab well established programming techniques and patterns simply don’t exist. Most people don’t bother to look beyond the headlines and see for themselves whether the patent claims have merit. To see my point all you have to do is actually try to think of something new to register, and then actually go through the process of researching prior art and you will find it is not at all easy. Indeed, you will quickly discover the best way to do it is to do hard work on prototypes so you are actually advancing the state-of-the-art and genuinely getting into new territory armed with new use cases that come about through the hard work of prototyping evolve new highly innovative features. i.e. the best way to identify patents to file is through doing real innovative work.

Another point is that the headlined bad patents ended up not being so bad. [The only one of the three that has stood-up is the Amazon one-click patent.] [- EDIT, this is in fact wrong - I was forgetting even this one has been overturned, so in fact all three of the most notorious cases have - further making my point] The problem in at least one of the other cases, was that with proper examination processes (using object modelling) the patents wouldn’t have been passed in the first place.

My second point is, even though now we have moved beyond the dubious low-hanging fruit “in-fill” patents even viable ones always appear simple after the event. This is just as true for mechanical inventions. The Black and Decker workmate for example, was an excellent invention which made it’s inventor a small fortune. The fact is he combined the idea of two existing objects, a clamp and a table, in a way that will now appear obvious to many. But it is the hallmark of many of the best inventions that they appear simple in this way after the event (and in most cases after the work of innovation). This same perceptual adjustment as to the difficulty of solving the problem after the event applies just as much to software patents as any other branch of technology. But, software patents now have such bad press and the patent industry sits on a database with so many patents of questionable validity, there is far less goodwill and willingness to acknowledge the “good” patents have merit.

My third point is how the Free Software movement is being unwittingly co-opted by the big corporations into getting the regulations the big corporations want on the statute books. I’m referring in particular to the oft used phrase “Patent Troll.” A phrase coined by Nokia in particular in the early noughties as they were lobbying for patent reform - but only of a kind that suited them - and that is now used frequently and liberally by all sides of the debate.

In the climate of negativity surrounding software patents the phrase carries heavy emotional weight and that is why Nokia promoted it. In the body politic of the tech ecosystem (as with any political space), the lobbying of incumbent powers is balanced out by the lobbying by radicals and hopefully the legislation passed implements some middle way acceptable and in the interests of the greatest number of people. The phrase “Patent Troll” makes any organisation so referenced sound even worse than the corporate multinational. A special kind of evil of pure legal kind. The phrase has since come to represent in the lay mind the worst kind of opportunists and despots responsible for making the unfair “land-grab” that don’t even have any means of production and so contribute nothing of net-value to the economy. Nokia has been arguing that Patent Trolls - patent owning organisations - must be stopped and the way to do that is to restrict granted patents to companies which own a means to produce the invention. A variant of the “use or lose argument.”

However stand back an look at who many of these so called “Patent Trolls” are and you will find amongst some undoubtedly aggressive and bad organisations, they include patent portfolio licensing companies that have collected and enforce patents owned by small innovators. These companies offer a channel for the small guy to retain and enforce the value of his patents through sharing costs. Naturally the portfolio owning company takes a share of the profit of licensing the patents to others in the industry but all businesses have costs to bear and the technique is as legitimate as, for example, selling on your debts to a debt recovery service.

Finally, consider if you come up with a really great new piece of software together with some friends/colleagues. The three of you work for six months delivering a first-cut product implementing innovative new features. Imagine doing this in a world without patents, a world where multimillion dollar corporations with deep-pockets and large armies of software developers can shamelessly rip-off your work and with the prototype you have provided in hand, quickly copy it with an even richer feature set and integrated into a full tech ecosystem. The real advantage Nokia’s proposals confer is the ability to impose a barrier to entry that will help prevent upwards competition from agile smaller start-ups. Sometimes in arguing the detail we forget the simple stuff. Patents provide a vital part of the paltry protection small business can wield against big business.

The use of the phrase “Patent Troll” benefits big business two ways. Not only does it play very nicely into the notion only companies owning existing means of production should be able to play, it deflects attention from the fact most of the morally dubious patents stored on the patent database are owned not by so called trolls, but by the corporate leviathans themselves. Patent reform lobbying is unlikely to result in the removal of the patent system altogether, but is much more likely to follow the kinds of proposal a company like Nokia put forward.

By all means lobby to amend patent law, but in doing so, don’t dismiss patents lightly, even software patents. If the system is properly implemented and the problem of poor examination standards and the legacy problem of “land-grab” patents addressed, they can be the friend of the small guy, the friend of the true innovator and will help competition more than hinder it.

Twitter: TheBasicMind

I'm going to have to be quicker in the future to stand a chance of beating my colleague, Alan Patrick, to publishing an article on a new service with as much hype as Wolfram Alpha, see Alan's blog post here.

So their search-cum-calculation engine passed the first step of my simple Turing test opener,

...well sort of:

"Are you a machine"

To which I got the reply:

Input interpretation: "Are you a computer?"

Response: "Yes I am a collection of computers."

But hold on, I'm being unfair here. Even by mentioning the Turing test, I'm implying it's an appropriate one to use. WA has never been billed as an AI solution and isn't that the problem? No matter what super search and response engine WA engineer, the standard we will judge them against is that of a human expert. As we use the service for the first time we judge them against the ideal of a custom written research paper targeting our specific enquiry with a precise and incisive executive summary all prepared by the world's greatest authority on whatever question it is we asked. Clearly WA, Google and anyone else is going to fall short for some time yet.

The more I use the service, however (which is not much as yet), the more it appears as though the input "question" or "search terms" I provide need to conform to invisible syntactic rules internal to the service if I am to get good results.

Searching on "London New York" will get you flight times between the two cities but "Flight times London to New York" won't.

I'm left wondering what the use is for a service where the most useful form of the results you get are determined by fuzzy syntax and notation. Maybe there is value in being able to get the form of results you want 50% of the time without referring to the help files. But then how do you know if there is a better format of results more suited to your needs than what you have been given - unless you have referred to the help files? But if you have checked the help files for the best notation and rules, why wouldn't you use strict notation so you know you will get precisely what you want every time?

Actually I do think there is value in a hit and miss notation guesser. We all have time constraints and as long as WA works for a sufficient percentage of cases, it will - on balance - provide value. Plus of course, WA provide guidance for those who can be bothered to look it up. But I suspect the real value of WA is in the back-end indexing and automation of quality assurance. It will take a little longer to explore the consistency and quality of the quoted resources than the initial review I have made so far but if the WA algorithms automate qualification of data sources and the quality standards are up to strict academic reference standards, I'm sure they are on to a winner.