DRM / IP

Today Facebook patented its NewsFeed (I read on RWW). The patent says that they are the patent holders for:

A method for displaying a news feed in a social network environment is described. The method includes generating news items regarding activities associated with a user of a social network environment and attaching an informational link associated with at least one of the activities, to at least one of the news items, as well as limiting access to the news items to a predetermined set of viewers and assigning an order to the news items. The method further may further include displaying the news items in the assigned order to at least one viewing user of the predetermined set of viewers and dynamically limiting the number of news items displayed.

I cannot believe that there is no prior art here! The Facebook Fanboi Nick O'Neill piously believes that:

It appears that this patent surrounds implicit actions. This means status updates, which is what Twitter is based on, are not part of this patent. Instead, this is about stories about the actions of a user's friends. While still significant, the implications for competing social networks may be less substantial.

Pull the other one, Nick. Based on Facebook's well documented benign and gentle past (for US readers - that's irony ) they are not likely to use this for commercial advantage? The main problem is that the patent system in the US is increasingly compromised, but we have covered this ad nausea before.

But I think this is becoming a real issue now, and there may be worse to come in my opinion. The problem the system has is that it is part subsidised by the state and probably costs far more to operate than it costs applicants, so its creaking. And what concerns me even more is the Vulture Capitalists are circling, this article by Nathan Myrhvold in the March Edition of HBR is quite scary- its basically a defence of his company, Intellectual Ventures', wish to Bunker Hunt the Patent market:

My company, Intellectual Ventures, is misunderstood. We have been reviled as a patent troll—a renegade outfit that buys up patents and then uses them to hold up innocent companies. What we’re really trying to do is create a capital market for inventions akin to the venture capital market that supports start-ups and the private equity market that revitalizes inefficient companies. Our goal is to make applied research a profitable activity that attracts vastly more private investment than it does today so that the number of inventions generated soars.

The basic idea is that there is a VC type market for "Invention Capital":

....a full-fledged invention capital system could solve many of the problems that have long plagued both inventors and the consumers of inventions: inadequate funding for applied research, an inefficient market for connecting companies with the inventions they need and for monetizing inventions, a balkanization of the inventors and inventions required to tackle big problems, and an enforcement and arbitration system that simultaneously permits too much infringement and relies too heavily on lawsuits to determine price.

Anyway, the argument is that the Government based patent system is not fit for purpose (true) and the solution is thus to privatise it (probably false, in our view - or at least not without a lot more safeguards than I suspect Mr Myrvold would want).

Another interpretation is that they have seen how big business has managed to buy up DNA IPR which by rights are global Common Stock, and are reselling this at vast profit to its original providers by the simple trick of legal enforcement based on having the money. In medieval England this was known as the Enclosure system, where rich Barons enclosed common peasant land and forced the peasants to pay for using it. One would also feel more re-assured IV were "doing it for us" if they didn't currently use "idea generation" sessions where their lawyers float round writing stuff down to run off and patent.

But one can see how these things will take root simply because they will get the money from backers to do them given the vast profit potential, as the existing creaking system will have few backers and defenders, and there is little financial/lobbying/ethical resource available to "Do The Right Thing".

So there is a strong argument that it behooves the Tech industry to fix the patent system, as what may replace it could be infinitely worse. One non-Myrhvoldian approach could be to wholesale import the European system, which is not yet as broken - but that would require the US to get over the Not Invented Here syndrome.

Interesting little snippet about Google's patents signalling what Google is up to:

Google updated a series of patent filings in January that could suggest the search giant plans to dig deeper into behavioral targeting, video content, and might also roll out dynamic advertising in its mapping applications.

The patents range from a method to deliver, target and measure advertising over networks to an overlay for advertisements in video content.

Advertising is king, then.....across all Googlemedia.

My Broadsight colleague Paul Lancefield designed a patent search engine a few years ago, and it's fascinating watching a company's patents group around areas. Its a very nice look ahead to their future technology strategy.

What is more saddening is watching the sheer volume of defensive patents the large technology corporates push out every year.

We've written before on the daftness of using DRM to protect one's business model, its always merely a matter of time before its hacked. News today comes of the Amazon Kindle being hacked - BBC:

An Israeli hacker claims to have broken the copyright protection on Amazon's Kindle software for PCs, reports say.

The hack will allow the ebooks to be transferred as pdf files to any other device.

The only surprise is thats its taken so long. Now, if the Kindle design is half-way smart it will be able to patch the DRM remotely (they seemed to be able to delete people's books remotely so we suspect it is) but of course it will be hacked again.

Peter Mandelson today said that the UK will get a "3 strikes and you're off the Internet" rule by April 2010. The BBC notes that:

Lord Mandelson emphasised that cutting off internet connections would be a "last resort".

"I have no expectation of mass suspensions. People will receive two notifications and if it reaches the point [of cutting them off] they will have the opportunity to appeal," Lord Mandelson told the audience at the C&binet Forum, a talking shop set up by government to debate the issues facing the creative industries (of which more, later). The pay-off for tough penalties against persistent file-sharers would be a more relaxed copyright regime, Lord Mandelson said. The details of it would need to be hammered out at European level but it would take account of the use of copyright material "at home and between friends", he said.

It would mean that, for example, someone who has bought a CD would be able to copy it to their iPod or share it with family members without acting unlawfully.

Well, that's akin to giving people what they already have with one hand while extracting something with the other hand - I don't know anyone who has ever been prosecuted for taping their own CD's or loading music onto their spouse's iPod. Still, there are some delicious turns of phrase:

....he emphasised that "legislation and enforcement can only ever be part of the solution".

The long-term answer was for the industry to educate users and to offer new and cheaper ways to download content, he said. In addition, new copyright laws were needed to lift restrictions on how people moved content on to the various different devices that they owned.

(Italics are mine.) There's a subtle knife twist in there, around those words "cheaper", "lift" and "restrictions". Its the music rightsholders that are behind this, they are trying to get the ISP's to police it - and bear some of the costs. They are not going to like those 3 words. The ISP's have also hit back where it hurts - in the wallet:

The Internet Service Providers' Association thinks rightsholders should shoulder the burden for all costs, including the reimbursement of ISPs.

"This approach is consistent with the principle of beneficiary pays and would serve to incentivise rightsholders to develop new business models and ensure an effective and efficient use of notifications and targeted legal action," read a statement from ISPA.

Which is a sound principle in most sensible legal systems. Another sound principle is that any law that criminalises the majority of its citizens will be made an ass of. The issue, of course, is the one the industry doesn't really want to adress - ie overcharging, What no-one who looks at this "gets" is why this industry feels the Apple model - decent quality at reasonable prices - isn't acceptable.

Now Lord Mandelson, of all people, knows all this. He also knows the Labour party has near zero chance of getting this law through before the next election anyway. Plus there are far bigger fish to fry, so why cause a storm in a teacup full of bloggers, music fans, open rights activists etc who like nothing better than a nice righteous campaign to get off on?

Part of the answer is the size of the industry, c £16bn annually, which the Government needs to ensure (i) keeps its revenue going and people employed and (ii) that they can tax, especially now the City's golden egg is broken.

Another part, suggested by some scurrilous wags, is that some of that £16bn turnover is used to fund lobbying activity, and....well, what with all the other parliamentary expenses being curtailed these days.........but frankly, thats too obvious a ploy, and if you need petty cash go float a bank or two.

Must admit I'm stumped on this at the moment.

On Twitter today came the message from @DowningStreet

PM says Sir Tim Berners-Lee will help drive opening of access to Gov data on the web over coming months

I'm not sure they know what they've done. The video above is Sir Tim at TED earlier this year. It has him about halfway through exhorting all of us to stand on our feet and bellow "Raw Data Now"! ""Raw Data Now"! ""Raw Data Now"!*

When do we want it?

NOW!!!!

Interesting times......

(*apologies, to early readers of this post, I recalled it as "Free Our Data"! before being put right - shows how good my memory is, and I was there....)

Update - Grauniad picks up the story over here. Tsk, these MSM boyos - always behind the pace

As Business Week notes, the U.S. Supreme Court announced yesterday that it would take up a major issue in intellectual-property law: whether patents should be granted for what are known as business methods. Many financial, accounting, and e-commerce firms have rushed to obtain patent protection for such things as ways to structure financial products, manage organizations, or transact business on the Internet. As they note, businesses are split on this (but somewhat predictably):

IBM, which has obtained a slew of business-method patents, filed an amicus brief in what is known as the Bilski case, stating that the company is now opposed to them. IBM maintains that the patents are not needed to promote innovation; businesses would come up with the products even without patent protection. "You're creating a new 20-year monopoly for no good reason," IBM's top in-house patent attorney, David Kappos, told BusinessWeek last year.

Accenture, the big consulting and technology services firm, vigorously supports business-method patents. "Why shouldn't new techniques for managing organizations be entitled to patent protection?" asks Wayne Sobon, Accenture's intellectual-property director, in an interview. "It's exactly like any other engineering field," he says. "Instead of applying science to control electrons, [consultants] apply science and engineering principles to improve how people work better together."

Lets be clear here - this whole area is a scam, requiring little skill and investment in R&D. I can write down a business method on an envelope and patent it - the amount of work I have to do is minimal. With the help of my colleague Paul Lancefield's patent search engine I can find out who else is in the space and dodge around them. Except that as a small company, its expensive for us - c $10k + to file, and very costly to enforce. But large players like Accenture can patent away like there is no tomorrow, so within a short while I potentially can't run a business without having to but someone's methodology for running it.

The original idea of patenting was to protect innovation so a company could fund the huge capital costs in developing the priduct. In business model cases its a licence to troll.

In other words, it stifles, not helps, innovation.

The whole business method patent scam started in 1998 when some retain dotcoms bamboozled the Patents Office, but we noted last year that the reversal started after the Bliski case was overturned (a Hedge fund tried to patent a business practice. As we noted at the time, its an encouraging trend towards ratioanlity in patents.

Now all they have to do is sort out prior art definitions and trolling...........

Interesting essay on the future of books in the New York Times today, showing that the outcome of the recent Google settlement is far from clear and that the issue of copyright has veen wrested from the ideals of protecting knowledge to one of protecting profit. The point that struck me was the 400% inflation in the time copyright applies over the last 300 years:

...copyright was created in Great Britain by the Statute of Anne in 1710 for the purpose of curbing the monopolistic practices of the London Stationers' Company and also, as its title proclaimed, "for the encouragement of learning." At that time, Parliament set the length of copyright at fourteen years, renewable only once. The Stationers attempted to defend their monopoly of publishing and the book trade by arguing for perpetual copyright in a long series of court cases. But they lost in the definitive ruling of Donaldson v. Becket in 1774.

US law by and large backed up the British concept of 28 years, but in the last few decades corporate influence has swayed legislators considerably:

According to the Sonny Bono Copyright Term Extension Act of 1998 (also known as "the Mickey Mouse Protection Act," because Mickey was about to fall into the public domain), it lasts as long as the life of the author plus seventy years. In practice, that normally would mean more than a century.

So - extension for a maximum of 28 years to c 140 years - this is hardly what one would call progress over 300 years. The current agreement with Google, while it stops them pwning the entire world's literary output, still essentially just extends the cabal of those who do have the rights by one extra big corporate. And no ordinary corporate - as the article notes:

No one can predict what will happen. We can only read the terms of the settlement and guess about the future. If Google makes available, at a reasonable price, the combined holdings of all the major US libraries, who would not applaud? Would we not prefer a world in which this immense corpus of digitized books is accessible, even at a high price, to one in which it did not exist?

Perhaps, but the settlement creates a fundamental change in the digital world by consolidating power in the hands of one company. Apart from Wikipedia, Google already controls the means of access to information online for most Americans, whether they want to find out about people, goods, places, or almost anything. In addition to the original "Big Google," we have Google Earth, Google Maps, Google Images, Google Labs, Google Finance, Google Arts, Google Food, Google Sports, Google Health, Google Checkout, Google Alerts, and many more Google enterprises on the way. Now Google Book Search promises to create the largest library and the largest book business that have ever existed.

So, who will raise the beacon of anti-trust then?

From El Reg - Techdirt reports that Bill Gates has joined ex CTO Nathan Myhrvold at Intellectual Ventures, a company we have covered before: Notes El Reg:

TechDirt has uncovered that Bill Gates is named as an inventor on nine patents registered with a company called Searete since he stepped down from day-to-day responsibilities with Microsoft. Gates is also named on a further two Searete patents pre-dating his Microsoft departure.
Gates with the Ballmerbot

Searete is one of a clutch of [shell] companies operated by Myrholvd's Intellectual Ventures (IV). Myhrvold holds 241 named patents in Searete, whose catalogue goes back to November 2005.

........

Not helping Microsoft's case is the fact that Gates isn't the only Softie working with Searete. Senior vice president of Microsoft research Rick Rashid and chief research and strategy officer Craig Mundie - who assumed some of Gates' responsibilities on departure - are also listed on the Searete patents. Searete and IV are also based in Bellevue, Washington - Microsoft's home state.

The patents authored by Gates, Rashid, Mundie, and others cover ways of identifying and monitoring the way people interact with web sites and online systems.

Now IV may say it is not a patent troll but if not its sailing very close to that wind, and it is reported to have some very questionable business practices (like putting bright people in a room to brainstorm and then having its lawyers file patents from the discussions).

Thing I don't get is why should Bill Gates bother - its not as if he needs the money, and being involved wit the potential negative publicity of "assertive patent acquisition" could hurt his otherwise benign emerging reputation as a charitable benefactor. Philanthropism and Patent Predation don't mix easily

I'm a great fan of Mike Masnick's Techdirt, except I do think they have an Achilles heel in their oft voiced views that all content can be free forever sustainably - this post on the recent Google Books Copyright settlement being typical. However, a more sanguine analysis (in my view) was posted by one of the commentators there (Techdirt is one of those great sites where the commentators are often as good as the writers) - its by a commentator called Lost Sailor, here it is in full:

For all the wailing and gnashing of teeth, and even though it's contrary to Mike's ardent desire that such content be "freed," this is not a bad agreement at all. Quite the opposite.

Now, I've only scanned through the actual text of the agreement, but it actually provides for far greater use of scanned books than Google might have been able to do if it just asserted its right of fair use.

First, it pretty much clears up any possible lawsuit by a publisher or author (assuming it's accepted by the court) and also shields the libraries that were participating in the project from any liability. It also provides Google with a competitive advantage now that publishers and authors will be even more encouraged to participate in the project since they know their rights are protected...and they'll get paid something.

Second, it allows for much wider use of digital copies of the books and provides Google with safe harbor. Google is allowed to fully display out-of-print or otherwise commercially available books that are still in copyright and will set up an automated process for making that determination. They can still provide limited display of "snippets" of the content for in-print and commercially available books.

Educational institutions and public libraries will get the rights to display all the books in-branch.

Participating libraries (i.e., those that make their collections available for scanning) have even greater latitude than they would have for using the digital copies they received back from Google.

All in all, while you may not have gotten the knock-down, drag-out fight you wanted to see, Mike, this agreement will get more books on to Google with much greater options for users to read and use the content much sooner. Cooperation between the publishers/authors, libraries, and Google will mean more books will be available for the service (and I'd anticipate a scenario where all newly published books are digitally sent to Google for the project automatically upon publication).

All because Google had the foresight to realize that publishers and authors have rights too, and that if reasonably addressed (and this is really quite a reasonable agreement), new cooperative models can actually be put into practice.

The way out of the current no win, free for all scenario is to hammer out workable copyright rules going forward. I couldn't have put it better, so I didn't - Lost Sailor, whoever you are, consider this a sincere form of flattery

Update - Larry Lessig reckons its a good deal as well:

IMHO, this is a good deal that could be the basis for something really fantastic. The Authors Guild and the American Association of Publishers have settled for terms that will assure greater access to these materials than would have been the case had Google prevailed. Under the agreement, 20% of any work not opting out will be available freely; full access can be purchased for a fee. That secures more access for this class of out-of-print but presumptively-under-copyright works than Google was initially proposing. And as this constitutes up to 75% of the books in the libraries to be scanned, that is hugely important and good. That's good news for Google, and the AAP/Authors Guild, and the public. (My favorable views about the AAP at least are not, of course, reciprocated.)

Nice to know Larry agrees with us

Ars Tech takes to task those scoundrels who would criticise St Lessig , but makes a very interesting point in the process:

....the Progress and Freedom Foundation is stirring dull roots with spring rain, unleashing a fresh attack on Lessig's four-year-old book Free Culture in a paper released Monday by senior fellow Thomas Sydnor. The argument itself is frankly bizarre: Sydnor brands Lessig's views on copyright as a species of "quasi-socialist utopianism," and he peppers his critique with breathless invocations of Soviet dictatorship and Orwellian panopticons. But the piece also provides potent testament to a fissure within the contemporary right, as Lessig's ideas find a friendly audience among some libertarian public intellectuals, leaving the content industry with a shrinking stable of credible defenders.

Its probably wise to avoid anything that has words like "panopticon

Actually, having read most of Lawrence Lessig's stuff, I think he is in the main correct and has done a tremendous job, though the accusation of a certain amount of Utopianism is not entirely unfair, he definitely has a viewpoint - but to Lessig's credit he does tend to examine every issue in great depth. Anyway, that's not the interesting bit - its the fissures referred to that is interesting, as they note at the end of their piece:

....the debates over intellectual property in the digital era are creating a second divide within the free-market camp, between corporate interests and the libertarian intellectuals and pundits who have so often provided the theoretical support for business-friendly policies. If libertarians, as Lessig puts it, "start to defect" from a strong-IP stance, copyright incumbents may be left with only their wholly-owned-subsidiaries as defenders.

This is quite insightful, and it implies a re-alignment of the Politico-Economic plates. And that in itself is interesting. In our workshops on Digital IP issues (one of Broadsight's team, Paul Lancefield, is an expert on IP and Patents) we do go into the history of IP, and one of the lessons from history is that IP typically follows the shifts in society - ie it lags reality. Thus I think this schism - and noting also the waves of DRM receding and the first stirrings of a review of the US Patents system - indicates that we are now possibly seeing the high watermark of the Draconian IP Lobby, and the Turning of the Tide.

However, in all seriousness, this is exactly when one needs to say to the other side, the "Free Societals" that its time to "hold on" - because pendulums tend to overshoot both ways, and I do think some of the proponents of Free IP are not exactly into IP freedom as a humanitarian exercise, but into Free (as in costs nothing) for their own self interest. Just as we are seeing a schism in the defenders of IP, its not clear to me that their opponents are all pursuing the same benign objectives as Mr Lessig.

The "Free IP" lobby do also need to have answers to issues their own viewpoints raise.

We need to consider our past experience - the Tragedy of the Commons is something that plagues humanity still in some arenas (most Green issues are Tragi-common issues), so its not a great idea to increase it.

In addition, abolishing nearly all IP protection will-he nill-he is akin to rescinding large amounts of helpful social capital we have built up, painfully, over the centuries - or in the vernacular, it would be akin to a giant looting spree (no doubt to lock up again into other closed receptacles, a la Google Books) unless managed quite carefully.

Thus I think we need to ask the Lessig activists (by that term I mean the "FreeTards", the more - um - enthusiastic? supporters) to answer the following question - "have you actually thought through the consequences if all created content is forever unprotected?".

And I don't want to see answers couched in psychobabble, Gift economics, New Economics 2.0 and other various politico-economic flavours whether libertarian, or discredited socialist / humanitarian ideals re-treaded. I want to see it discussed in terms of hard headed behavioural economics, in terms of what people really do, not what they say they will do. I want to see it in terms of business models where I can see the money flowing without the "and here a miracle occurs" phase in the flow, or the "3-pot-shuffle-it'll be-alright-on-the-night" assurances. I want to see the game theory that shows me why people will do what we think they will do.

Now, I am well aware that taking this line will make me seem like another capitalist lackey - thats not it, I just want to ensure the pendulum hits a happy medium - ie we design a damped rather than underdamped system. It strikes me that this is an issue that does need airing, rationally, because the future of content will be driven by its own basic economics, and most specifically, the risk and rewards - ie the opportunity cost - of creating it.

I want a future world with great content, and I don't mind paying (a fair price) for it. What I don't want is a world with completely free, Ad sponsored, crap content. I've seen commercial TV, and its not something to be proud of - but nor is just ripping it off and sticking it up on YouTube

(Update - I feel in a way that I treated Mr Lessig himself unfairly in this article - he after all is trying to do some very good things with the Creative Commons etc - which we use on Broadstuff - what I am more concerned about are some of the other interest groups riding on the coat-tails.

In fact, he wrote a short response to these articles over here, and I'd like to quote one of the comments as it adds nuance to my thoughts - from gurdonark:

Having read a number of critiques of Creative Commons and, now, Free Culture, from the left and the right,
I'm amused that what I view as a fundamentally moderate position draws such extreme invective.

One point is simple. There is nothing particularly radical about a voluntary movement by creators to donate work into a Creative Commons through use of liberal licensing within current copyright law. Those who choose not to so license are not affected by any disadvantage, except that arguable disadvantage that people who donate photos and music may depress the market for sellers of the same creative material.

Similarly, the injection of research and otherwise patentable ideas into the public domain is as old as academic research institutions. There is nothing particularly "Lessig" about this practice--all you've done, in collaboration with others, is point out its virtues in an analytical context as a "science commons".

The second point for which you advocate is only slightly more novel--the idea that extensions in protected terms and artificial extensions in what is protectible may, in the long run, be disadvantageous to all. This is a viewpoint not at all inspired by any Soviet, or, indeed, any utopian pastoral anarchy. What is the "payoff" as a rhetoric device in portraying your idea as a particularly "left" dialectic? Similarly, when Creative Commons comes under fire from the "open source" movement for being offering people to utilize licenses in the existing copyright regimes to ensure certain protections, it's hard to see you or CC as pawns of government exploitation of freedom of information.

I do not wish to overthrow all IP laws, as I think they can and do serve a valuable function. I'd like to see them reformed around the edges (e.g., an end to Mickey Mouse copyright term extensions and a different patent examination/re-examination process, as well as relief on fair use clarity). In the main, though, CC licenses is a way to achieve a "velvet revolution" in which a dedicated body of creators, scientists, and audience create a new set of publicly useful ideas in a liberalized version of "permission culture".

I get disappointed when I read extreme takes on your work, because there is a legitimate debate about the
proper boundaries of IP law to be had. I also get disappointed because there is a legitimate cultural movement to create this Creative Commons underway, and distortions advance neither the cause of the proponents nor the cause of the critics. One can argue that creators should not license CC--it's a perfectly reasonable argument to make. But that argument is centered in the real-world of daily life more than in the dream world of 1920s left/right polemic.

I think Mr Lessig's core issue is how to be a moderate revolutionary, a tough gig to pull off - ask Lenin .)