Stop Me Before I Regulate Again!

In the latest issue of Wired, always-interesting Lawrence Lessig admits he was wrong about Microsoft:

I was one of those reluctant regulators. As the evidence of Microsoft's practices became clear, I remember well thinking, "Of course the government needs to do something." And I remember very well the universal impatience with the notion that the market would solve the problem. How could it, when any other company was likely to behave just as Microsoft did?

We pro-regulators were making an assumption that history has shown to be completely false: That something as complex as an OS has to be built by a commercial entity. Only crazies imagined that volunteers outside the control of a corporation could successfully create a system over which no one had exclusive command. We knew those crazies. They worked on something called Linux.

I wanted to believe that Linux would prevail. But I'm a lawyer, and lawyers aren't programmed to see how profitable innovation might happen without commercial control. I didn't like the idea of regulation; I just didn't see any alternative. The suits would always beat the rebels. Isn't that why they were so rich?

The success of Linux and Firefox's bite into IE's market share shows how even a seemingly invincible Godzilla like Microsoft is susceptible to competition if it lets its market dominance breed cockiness and complacency.

Lessig applies this lesson to the "net neutrality" debate, but only to admit he has failed to learn it. He calls himself a "reluctant regulator" on neutrality, though he concedes that he may be making the same mistake there that he made with Microsoft.

Jesse Walker interviewed Lessig for reason in June 2002.  And Joseph Bast and Dave Kopel blasted the Microsoft antitrust case in November 2001.

Comments

Sandy | January 4, 2007, 8:35am | #

Errr...how does Microsoft's behavior since the consent decree reveal the market at work? They don't behave quite as aggressively now to shut down potential competitors by leveraging their OS and office productivity monopolies or pre-announce as many competing products with the implied threat that the current product will not work in the next update of Windows.

Whether you approve or disapprove of these practices, the change in behavior can't be ascribed purely to the market. Given that the market actually beat Congress to punish the companies Sarbanes/Oxley was aimed at, the idea that the market would have taken the same course absent the consent decree is dubious at best.

Lamar | January 4, 2007, 8:40am | #

Lessig has a point that the infrastructure needed to deliver broadband is very different from the human capital needed to develop an OS. He notes that many municipalities are building networks that would be open to all and would be an option for those seeking service outside of the wires owned by a monopoly, i.e., the municipal networks would act like a Linux, altering the business model of the monopoly network. Regulation vs. government-built infrastructure, somehow neither of these options seem very libertarian. Lessig assumes, as I do, that a monopoly network is a bad thing. I also assume that the monopoly networks did little to "earn" their status because most of the infrastructure was mostly built during a time of protected monopoly status.

Lamar | January 4, 2007, 8:49am | #

It should also be noted that Lessig is opposing lobbying efforts by broadband providers to ban municipal networks. Seems both sides are seeking government assistance with pesky competitors.

steveintheknow | January 4, 2007, 8:57am | #

I don't necessarily see municipalities building networks to be used “publicly” all that different then building roads and other infrastructure. Both instances can be dubious, I guess, from a libertarian standpoint, but at least it is a local phenomenon. Perhaps there would be a negative crowding out effect, or something that’s too far above my head to mention. Either way the real check on any monopoly is innovation. I am sure there is some technology or market trend or both, down the road that will develop that is unforeseeable to legislatures and the general public.

val | January 4, 2007, 9:05am | #

Whether you approve or disapprove of these practices, the change in behavior can't be ascribed purely to the market

Actually yes it can.

The main premise of the antitrust case was that Microsoft was packaging Internet Explorer with Windows, where by it was damn near impossible to uninstall IE. So the suit alleged that here Microsoft was using its OS unfairly to win the browser wars.

First of all this isnt a normal type of monopoly here as Lamar points out.
I also assume that the monopoly networks did little to "earn" their status because most of the infrastructure was mostly built during a time of protected monopoly status.

In this case Microsoft packed one of their products with another of their products. THOSE BASTARDS!!! Alternatives were always available, although obviously not as attractive as Windows.

So what came out of the anti-trust regulation?? Nothing, except some dollars from Microsoft to line the public coffers. The only real competion to IE came about recently from the open source community in the form of Firefox, and that was a purely market based response, it would have come about sooner or later with or without the lawsuit.

Microsoft was never a monopoly. It was simply a business that had achieved large market share through competition. And was determined to keep or increase that share by leveraging their other products.

John | January 4, 2007, 9:06am | #

Lamar,

I don't think that it is possible to have a monopoly network. Yes, you can build the wires and not let competitors use your network. But, you can't stop other people from building wireless towers or offering satellite broadband. You also can't stop the phone companies from using their networks to deliver broadband. In the same way that cell phone service has rendered a phone monopoly impossible or satellite service make the lousy cable companies improve their service, other methods of delivering broadband ought to render the local municipal broadband monopolies impossible. It may take a while, but without radical government support, eventually all monopolies fail.

While this guy gives a mea culpa, we never get back the billions of dollars that went to defending the Microsoft lawsuit that could have been otherwise productively spent. I hate to tell this guy, but sorry doesn't exactly feed the bulldog on this one.

John | January 4, 2007, 9:15am | #

"So the suit alleged that here Microsoft was using its OS unfairly to win the browser wars."

Classic example of why the government should stay out of the market. In 1995, everyone assumed that the money was in browers and Netscape was the thing of the future. No one or few realized that the browser wars were meaningless and the money was going to be in content in things like YouTube and in search engines like Yahoo and Google. All that money and knashing of teeth over an alleged monopoly in yesterdays market.

Swillfredo Pareto | January 4, 2007, 9:15am | #

Open source and P2P opportunities have been picking up steam for years, Linux is only one challenge to Microsoft. Red Hat, Skype, JBoss and all sorts of other companies have found ways to make a lot of money. In my crystal ball the next leap forward will not be in acceptance of open source operating systems but rather the software that can run on the Operating System. If Open Office and other open source productivity software can continue to improve and be considered in an enterprise environment as a replacement for the M$ Office suite the time will come when Microsoft will either have to completely change their business model or become an also-ran. Microsoft doesn’t make bad software they make mediocre software and enjoy monopoly prices on it. When was Vista supposed to come out again?

Lamar | January 4, 2007, 9:46am | #

John,

Satellite broadband costs anywhere from $50 a month to $100 a month, plus equipment/connection fees (in the $300 - $500 range, but sometimes free if you commit to a long-term contract). This suggests that the era of monopoly networks is closer to an end than many expect.

P Brooks | January 4, 2007, 9:54am | #

I blame Apple for Windows. If those idiots had not clung so tenaciously to the (overpriced) proprietary hardware model, Windows would most likely not have gained such a stranglehold on the OS market.

All my computers have been Apples, until recently- I now have a previously owned IBM thinkpad laptop on which I run (drumroll, please) Knoppix Linux.

Warren | January 4, 2007, 10:21am | #

What isn't mentioned, is how MS uses the government as their hired muscle to prey on smaller companies. MS would never have been able to bully competition into submission if not for the state of intellectual property law. Over the past three decades IP law has evolved more and more to favor the establishment. As things stand now, it is pretty much the case that patent are held by, and enforced for, whoever has the highest paid lawyers. Judges and other legal types have never been apt at deciphering the merits of technical arguments, now they don't even pretend to try.

The Lessig Blog | January 4, 2007, 10:27am | #

Last year Microsoft, this year Aaron Swartz

Last year it was Microsoft that put us over in our online campaign to raise support for [my favorite cause]. This year, at 5 AM Berlin time (and hence, 8 PM San Francisco time), it was Aaron Swartz who broke the thermometer. Stay tuned for some very cool news about the offline campaign. We should have totals early this week. And thanks to everyone who made this a success.
posted by [ Lessig ] on [ Jan 1 07 at 7:27 AM ] to [ creative commons ] [ No comments ] [ post diffusion: No trackbacks + technorati ]

John | January 4, 2007, 10:28am | #

It is funny Warren. IP law has become a license to print money in the last ten years. Allegedly the IP lawyers are supposed to have a technical background to pass the patent bar. I am not really sure that helps much. Some guy who got a EE degree in the 1980s and hasn't done anything technical since is not going to know anymore and in fact may know less about a modern software dispute than the average person.

Sam Franklin | January 4, 2007, 10:47am | #

It is funny Warren. IP law has become a license to print money in the last ten years. Allegedly the IP lawyers are supposed to have a technical background to pass the patent bar. I am not really sure that helps much. Some guy who got a EE degree in the 1980s and hasn't done anything technical since is not going to know anymore and in fact may know less about a modern software dispute than the average person.

In claim interpretation cases (maybe a full third of the big disputes), and the state of the technology past and present is often stipulated by the experts hired by the respective parties (and generally paid as much as the lawyers). The only question is how the words in the patent documents (lawyer drafted documents, that is) read on the technology. That is exactly the verbal type of issue that you do not want an overly technical person deciding. Very few ee's in my experience have a BA or a minor in lexicography -- but that is the relevant skill set in the claim interpretation cases.

Sometimes the dispute is about whether the patent application was enabled back when it was filed (often the 80s).

Other times the dispute is about whether the invention was "obvious" at the time the patent application was filed (eg, back in the 80s).

For both obviousness and enablement, the legal touchstone is "one of ordinary skill in the art." "Ordinary" means just that, ordinary. Patent lawyers are usually pretty capable of bringing themselves well up past the level of ordinary skill in the art of the 80s or early 90s. It is easy because the technology is 10 or 15 years old when the patent case is brought.

John, you are well out of your depth here and your comment is nonsense. When a litigant loses a patent case, they invariably cry out that the judge or jury was clueless about the technology because it makes the loser feel better. You do seem to have that part of the dynamic down.

Finally, patent applications often take years and years. You would be surprised what a bright BS/JD can learn in three years between the time the complaint is filed and the Rule 56 motions are made. The lawyer preps for three or four (or 40) depos, review hundreds of boxes of technical documents, select and converse with a dedicated expert (generally a technology professor), examine a bunch of hardware, etc, etc, stuff rubs off. It really does.

Sam Franklin | January 4, 2007, 10:49am | #

"Finally, patent applications" should be --Finally, patent litigations--

G*d, I h8 making typos when I am pwning someone, even just John.

Sam Franklin | January 4, 2007, 10:57am | #

Moving back to the topic of the thread at hand. If the government had merely broken Microsoft into pieces, instead of trying to micromanage it, then the problems Prof. Lessig cites in his Wired article would not be problems.

From someone who has written as much about the AT&T breakup and its attendant, eventual positive affect on the development of the Internet, the Wired article does not ring true.

John | January 4, 2007, 11:00am | #

"John, you are well out of your depth here and your comment is nonsense"

Other than being using as an excuse to be pompus and unpleasant, Sam I am not really sure what your point is. Yes, patent litigation is long and complex and yes smart people can figure out the technical end of it. And yes, loosers of litigation are ussually unhappy. So what?

My point is that there is more to these disputes than the technical end of it. When interpreting and writing IP law, people are not thinking about the bigger picture. The overall effects on society and the market of the laws. I don't think enough people are asking the basic questions of how do we balance people's property rights with the need to open up ideas for people to expoit. At what point does the cost of IP litigation outweigh its benefits or just allow companies to use it as a club against competetors?

Lamar | January 4, 2007, 11:01am | #

Big law firms go for the EEs, yet in the court room, there's nobody I'd rather go up against than a lawyer with a science background. It turns out: (1) you have to be able to speak English to convince a judge or jury, and (2) lawyers who learn the art freshly tend to pay attention to the details whereas science guys tend to assume too much.

John is right about patent law being a licence to mint money. Initially patent law was created to encourage innovation. Nowadays, there are so many patent trolls like NTP (see the RIM vs. NTP patent litigation) that a company is encouraged to stay away from any technology that has an overbroad patent taking up the field. Such a mistake cost RIM $612 million despite the fact that the USPTO declared most of the patents invalid. Ka-ching! So when RIM cried that the judge didn't understand patent law, they had the USPTO saying, yep, the judge screwed up.

John | January 4, 2007, 11:14am | #

Lamar,

IP law is the monster that is going to swallow technology. I am starting to wonder if maybe we should throw the baby out with the bath water. Seriously, if there was no or very limited IP protection, would inovation really stop or slow so much that it would outweigh the cost savings of no more IP litigation? I don't claim to know the answers to those questions but I think they are worth asking.

Sam Franklin | January 4, 2007, 11:29am | #

My point is that there is more to these disputes than the technical end of it. When interpreting and writing IP law, people are not thinking about the bigger picture. The overall effects on society and the market of the laws. I don't think enough people are asking the basic questions of how do we balance people's property rights with the need to open up ideas for people to expoit. At what point does the cost of IP litigation outweigh its benefits or just allow companies to use it as a club against competetors?

First of all, did you RTFA? Although HnR predictably stressed Lessig's second thoughts about Microsoft and completely ignored his main message which was about net neutrality. His concern is that service providers will use things like ip and the natural monopoly inherent in telephone and cable wires to club competition and thereby stifle technology. in other words, lessig's article does exactly what you would say ppl don't do (but, again, not that you would be able to pick that up from this strategically focussed blog post).

People also try to accommodate competive concerns in the patent law area. For a regular HnR reader, it is probably best to start:

http://www.reason.com/blog/show/112232.html

then you will probably want to take a look at the seminal Nelson and Merges article On the Complex economics Of Patent Scope and then move onto some classic Kitch (who I think is due for a comeback).

The problem isn't that people aren't thinking about these issues. The problem is that your preferred media sources don't discuss these issues, and in the absence of info you have made up a silly, wrong picture about how patent lawyers and professors operate.

Final note: The person who really started the patent free for all was Ronald Reagan. He basically set up a whole federal Circuit Court of Appeals to make sure that the courts stopped shooting down everybody's patents as they were wont to do before the Reagan revolution. Yes, you heard me correctly "set up a whole new Federal Circuit Appellate Court." Needless to say, President Reagan felt pretty strongly on the issue. As with his antitrust legacy, Reagan was correct in the context of his times, but we have gotten carried away to an opposite extreme over the ensuing decades and can't even visualize going back. Ppl really like Reagan so that makes it harder.

Sam Franklin | January 4, 2007, 11:41am | #

How do you know that NTP did not create a valuable technology and is now being justly compensated? Do you even know the names of the people who invented the technology at issue in the case? Could you describe that technology in your own words, you know, what exactly NTP was claimning they did that was new? Do you know of someone who did what NTP talked about in its patent prior to NTP? I am going to go out on a limb and say that you haven't studied the case that closely yourself. Rather you are relying on a big corporation to spin the facts of the case for th media who relates them to you.

What would you have said back in the late 1800s when General Electric was built by monopolizing Edison's lightbulb patent? Was Edison a patent troll? were the Wright Brothers patent trolls?

for those who haven't litigated a lot of patent cases here is a hint: a party who wants to delay the day of judgement in a patent case will invariably start up some some proceedings in the USPTO and use that to try to delay the trial. Sometimes it works. here it did not. i imagine that the court probably thought that if the USPTO was so hott, then they would have examined the patent applications correctly the first time, years before the litigation started and not be changing their verdict late in the game. To put it another way, USPTO proceedings are no substitute for a day in a real court. The courts are the boss of the uspto, not the other way round.

Swillfredo Pareto | January 4, 2007, 11:47am | #

If the government had merely broken Microsoft into pieces, instead of trying to micromanage it, then the problems Prof. Lessig cites in his Wired article would not be problems.

Except the government didn’t have a reason to do so. It can be argued that in its day AT&T was a natural monopoly (i.e. at all levels of demand one company can provide the good or service cheaper than multiple companies). That has never been the case with Miscrosoft. Only through an extremely nuanced (pronounced bullshit) definition can Microsoft ever have been viewed as having a monopoly on operating systems. Judge Thomas Penfield Jackson chose to define this space as “Intel-compatible PC operating systems”. By that logic Apple has a monopoly too.

Sam Franklin | January 4, 2007, 11:52am | #

Except the government didn’t have a reason to do so. It can be argued that in its day AT&T was a natural monopoly (i.e. at all levels of demand one company can provide the good or service cheaper than multiple companies). That has never been the case with Miscrosoft.

From the linked article:

"An OS is a standard – meaning that, over time, one tends to dominate."

Newton's laws of motion are not the only reason tat a natural monopoly can arise. sounds like another customer has been reading too much HnR.

Russ 2000 | January 4, 2007, 11:54am | #

Let's not forget that anti-trust regulation forced Xerox to essentially throw their OS in the trash which allowed the scavengers named Jobs and Wozniak to grab it for nothing.

Sam Franklin | January 4, 2007, 11:56am | #

Besides the fact that the Sherman Act would apply whether the monopoly is "natural" or not.

the Judge should have split MS into pieces exactly the size of Apple. that is exactly what would have optimized competitive balance over the sector as a whole.

It also would be nice to have a separate company respectively in charge of supporting Windows 95, windows 98, windows xp and windows VISTA. that way consumers would not be so pressured to junk their old operating systems (that is economically inefficient for obvious reasons).

Mike Laursen | January 4, 2007, 11:57am | #

Errr...how does Microsoft's behavior since the consent decree reveal the market at work?

It's not that their behavior changed, it's that a lot of would-be huge Microsoft customer accounts (think Amazon or eBay) can completely ignore Microsoft.

Sam Franklin | January 4, 2007, 12:00pm | #

Let's not forget that anti-trust regulation forced Xerox to essentially throw their OS in the trash which allowed the scavengers named Jobs and Wozniak to grab it for nothing.

Instead of keeping it locked up in a nice building with beanbag chairs and a water fountain. More's the pity.

Russ 2000 | January 4, 2007, 12:06pm | #

(that is economically inefficient for obvious reasons).

You've obviously never been in the software business.

val | January 4, 2007, 12:09pm | #

"An OS is a standard – meaning that, over time, one tends to dominate."

See its exactly that type of statement that make people think that people regulating technology dont know anything about technology.

An OS is a standard of what exactly? An OS is simply a piece of software that runs on a computer that other software can run on. Software can be written 'natively' like IE where it uses native OS functionality, or 'interpreted' like FireFox where another piece of software sits on top of the OS and interprets instructions and passes them to the OS.

So Im not really sure exactly what an OS standardizes. You are welcome to write your code in Java (which is interpreted) and then your standards is SUN not Microsoft. If you want to write software in C++ that integrates with Office then your standards are determined by Microsoft.

Sam, you might be an expert in legal issues compared to many of us here, but when it comes to software you seem out of your depth.

Swillfredo Pareto | January 4, 2007, 12:20pm | #

Besides the fact that the Sherman Act would apply whether the monopoly is "natural" or not.

The Sherman Antitrust Act is completely out of its element as applied to Microsoft. The market chose them. You are under no obligation to consume their products.

If it is not perfectly clear, I loathe M$, I cannot wait for them to be destroyed. The dollar value of the lost productivity around the world as people watch Windows freeze and re-boot each day could easily solve all of Bono's and Bill Gate's pet African issues.

It also would be nice to have a separate company respectively in charge of supporting Windows 95, windows 98, windows xp and windows VISTA. that way consumers would not be so pressured to junk their old operating systems

The list of things that would be nice, versus the list of things the Federal Government has a constitutional mandate to meddle in are drastically different.

Sam Franklin | January 4, 2007, 12:25pm | #

(that is economically inefficient for obvious reasons).

You've obviously never been in the software business.

Back in 1984 there was an Apple commercial to the effect that Microsoft's emerging monopoly would dampen people's creative spiriits and sap their imaginative faculties about how the world could be. Lawrence Lessig would probably call such a mentally depleted state is-ism. George Orwell (whose writings ere heavily ref'd in the commercial) would have called it a boot stamping down on the face of humankind forever.

Russ 2000, i h8 to say it but they got you. you have no idea what the software world would look like if writers were actively writing for win95, win98, me, osx, win2000 and win xp at the same time. there would be a lot more opporunities in such a decentralized market and much more opportunity to discover new things. What is most efficient for R&D (or coding) taken narrowly is seldom efficient with respect to development of an industry as a whole. that is why competitive economies do better r&d than command economies do. Competitive economies try more things, fail more often and come out stronger in the end for having undertaken the arduous journey.

PS:
the ellen feiss ad was better, but thankfully not quite so deep.

Lamar | January 4, 2007, 12:25pm | #

Sam Franklin: I can't let your inaccurate posts stand without a knowledgeable reply.

"How do you know that NTP did not create a valuable technology and is now being justly compensated?"

I'm relying on the USPTO's invalidation of the patents, the knowledge that the technology was nothing new, and the knowledge that RIM invented its own device. Also, google Geoff Goodfellow. And educated people spelled it "owned."

I get most of my knowledge from a small dump across town called Jones Day, (disclosure: the lawyers for RIM). I'm familiar with the case, and you are not. You have a shallow wiki-understanding of the case.

Your analogy to Edison stinks to high hell. Where's the lightbulb before Edison's? Certainly Joseph William Swan had one. He and Edison formed a company to avoid patent disputes. The Wright Brothers might have been patent trolls given the fact that they were not the first powered flight (though admittedly, their patents didn't claim them to be). They also succeeded in convincing a court to conclude that ailerons were the same as wing warping, broadly defining their patent as a system to control airplanes. Who knows how many years their patents set aviation progress back?

Oh yeah, the Courts are the boss of the USPTO, for sure. Of course, they are also the boss of the President of the United States, so I don't know what your point is.

Sam Franklin | January 4, 2007, 12:28pm | #

The list of things that would be nice, versus the list of things the Federal Government has a constitutional mandate to meddle in are drastically different.

what does the interstate Commerce Clause refer to then? If Windows is not interstate commerce, what is?

the Constitutional mandate is the commerce Clause, the legislative madate is the sherman Act, and as much as Swillfredo's implication that the Sherman Act has been repealed or rendered moot is simply wrong.

Sam Franklin | January 4, 2007, 12:39pm | #

I get most of my knowledge from a small dump across town called Jones Day, (disclosure: the lawyers for RIM). I'm familiar with the case, and you are not. You have a shallow wiki-understanding of the case.

whoa, whoa, whoa, let's be clear here.

I took no position on the merits of NTP's claims. For all I know they invented nothing. It would not be uncommon at all for the USPTO to allow a patent with no merit. they do it all the time and probably more often than not.

All I said is that the others on this thread, who were making bold assertions about the ultimate merits and were reading the USPTO decision (reviewable by a court, donchaknow) to mean a lot more than it does. Courts are smarter than the USPTO and courts review the work of the USPTO. When courts are given the discretion to cut off the USPTO nonsense at some point.

that doesn't mean the uspto was wrong on NTP. that doesn't mean the court's preliminary finding of liklihood on the merits was right. All it means is that someone who has not read the patent claims and reviewed the prior art themselves has no business opining on the merits of those issues. People think they know a lot more about the NTP case than they do because RIM spends more on PR than NTP does. But that is not the intellectual integrity approach. the intellectual integrity approach is to read those patent claims look at the prior art (to the point where you can discuss it in your own words) and then (and only then) form an opinion.

I have worked with enuf Jones Day and ex-Jones Day ppl to tell you something about them: like any other law firm, they are heavily biased in favor of their clients and are incapable of explaining a case involving their clients to you in an impartial, objective way. they will say what they feel they need to say so that you side with their clients. Not to pick on Jones Day, tho. pretty much all law firms are like that.

val | January 4, 2007, 12:44pm | #

The RIM argument against NTP was that the patents in question fell under 'prior art'. Meaning what they tried to patent had been done before in the public domain.

By briefly glancing at a few of them, it looks like they basically tried to patent the process of receiving email wirelessly. Since the intent of patents is to protect inovation, many were hardpressed to see what inovation NTP had here. Wireless networks had already been demonstrated for a few decades. So its easy to see why to anyone knowlegeable about this type of tech, email (which is software running over a network) on a wireless network was already prior art with the demonstration of wireless networks.

It was something akin too some one creating a digital clock with a led face, then when the blue led was invented, someone goes out and patents a digital clock with a BLUE led.

Sam Franklin | January 4, 2007, 12:44pm | #

Your analogy to Edison stinks to high hell. Where's the lightbulb before Edison's? Certainly Joseph William Swan had one. He and Edison formed a company to avoid patent disputes. The Wright Brothers might have been patent trolls given the fact that they were not the first powered flight (though admittedly, their patents didn't claim them to be). They also succeeded in convincing a court to conclude that ailerons were the same as wing warping, broadly defining their patent as a system to control airplanes. Who knows how many years their patents set aviation progress back?

having read both edison's lightbulbs patent claims and the Wright brothers rudder-oriented claims, I can tell you definitively that Edison dod not claim simply "the lightbulb" and the Wright Bros did not simply claim "powered flight."

I get the distinct feeling that you have never read those patent claims. No wonder you think they are all "trolls." your level of analysis is typical. Laypeople, even educated ones, are almost willfully ignorant about patents.

val | January 4, 2007, 12:48pm | #

P.S. This is something I read on another website, so I cant verify it. But it asserted that NTP made a request to the USPTO for more time as it would take a new experts weeks to months to understand the relationship between the patents and prior art. Imagine the judge (not an expert) trying to make heads or tails of this.

Sam Franklin | January 4, 2007, 12:49pm | #

By briefly glancing at a few of them, it looks like they basically tried to patent the process of receiving email wirelessly. Since the intent of patents is to protect inovation, many were hardpressed to see what inovation NTP had here. Wireless networks had already been demonstrated for a few decades. So its easy to see why to anyone knowlegeable about this type of tech, email (which is software running over a network) on a wireless network was already prior art with the demonstration of wireless networks.

here is what claim 1 of NTP's firts patent says:

1. A transceiver for transmitting and receiving atmospherically transmitted information with the atmospherically received information being subject to atmospheric fading for a time interval and being modulated with a carrier modulated with a subcarrier with the subcarrier being modulated with identical first and second encoded information streams to produce first and second parallel information streams modulated on cycles of the subcarrier with the first parallel information stream containing the first encoded information stream and with the second parallel information stream containing the second encoded information stream with the parallel information streams being atmospherically transmitted with a time delay interval between the parallel information streams as modulated on the subcarrier which is equal to or greater than the time interval, the transceiver comprising:

a detector for detecting the transmitted first and second parallel information streams; and

at least one processor, responsive to the detected parallel streams, for determining if faded information is present in at least one of the detected first and second parallel information streams received by the transceiver, in response to determined faded information replacing the faded information caused by an atmospheric fade with replacement information from at least one of the first and second parallel information streams which is time offset at transmission from the faded information by the time delay interval and outputting error free atmospherically transmitted information including the replacement information; and wherein

the at least one processor places an error marker within the detected first and second parallel information streams to mark each faded information unit within the faded information requiring replacement and controls replacement of each error marker within at least one of the first and second parallel information streams with replacement bits within one of the first and second parallel information streams which were time offset at transmission by the time delay interval to produce the error free atmospherically transmitted information.

Your understanding of this patent claim, as expressed in your quote, is substantially incorrect, incomplete and useless.

Lamar | January 4, 2007, 12:56pm | #

I didn't say Edison claimed "the lightbulb" and I didn't say the Wrights claimed "powered flight." There were prior arts problems in both patent situations, the former resolved by a business partnership, the latter resolved by stifling the progress of aileron technology. You are correct about Jones Day lawyers, that's why they are so damn good. But I'm at another biggie, and pretty good at picking apart the most solid of cases. I'm not a lay person by any means. I generally avoid the IP arena because I don't believe in it's merits and believe it has stifled innovation.

As indie musicians, we can agree that at least the current copyright regime has hurt our craft, no? I think patents have been hijacked in a similar fashion by moneyed interests, no doubt helped by the same Jones Day hot shots mentioned.

Swillfredo Pareto | January 4, 2007, 12:56pm | #

what does the interstate Commerce Clause refer to then?

I guess that depends on who you are asking. According to a majority opinion of the Supreme Court in Gonzalez v. Raich it refers to the right that the Federal Government has to regulate the use of medical marijuana that is grown, sold and consumed entirely within the borders of one state. In other words it is the cudgel used to justify the intrusion of the Federal Government in all activity up to and including the wiping of one's ass. Or did you mean something else?

Warren | January 4, 2007, 1:17pm | #

"Prior Art" is at the heart of modern IP corruption. There is always "prior art" for any technology. What matters is how much you pay your lawyers.

val | January 4, 2007, 1:22pm | #

Well, Sam, Im neither a lawyer nor an electronics engineer. You may have access to better tools then me, so was the patent you quoted here (#5446759) one of those invalidated by USPTO?

Sam Franklin | January 4, 2007, 1:23pm | #

As indie musicians, we can agree that at least the current copyright regime has hurt our craft, no? I think patents have been hijacked in a similar fashion by moneyed interests, no doubt helped by the same Jones Day hot shots mentioned.

Strong agree. If you followed my link above, you will see that I think the central problem is that "obviousness" has been written out of the law, which turns patents into economic chits, rather than rewards for innovation.

Normally this redounds to the benefit of big companies who want to collect a lot of patents without the neccessity of doing anything different (eg, taking greater technological risks) than they otherwise would, absent the patent system. Of course, if companies, from an R&D perspective, behave exactly as they would absent the patent system, then the patent system does not encourage creativity and John's bottom line assessment that the patent system is counterproductive becomes correct. Frankly, it wouldn't bother me if they did repeal the whole patent system. I have morphed into a plain old contracts attorney anyway.

but, as discussed at my link above, I think there is a way to rehabilitate the patent system and to restore its former economic usefulness (yes, i do genuinely believe that the patent system marginally encouraged both Edison and the Wright Brothers relative to their would-be competitors in less patent intensive nations). i think people need to stop being quite so cynical about the substance and start focussing on the real question of how to reward true innovation and separate it from the crap. I think this can be done by the courts if they simply used different legal standards for obviousness. if you follow my link, you will see that I have some pretty specific proposals about how to rewrite this law. But nobody will engage that if they insist on staying at a superficial, cynical level with the patent stuf.

What should happen in the RIM case is that those patents should have been fully litigated on the issue of obviousness long b4 now. patent law should be about having trials on obviousness, not avoiding them. Jones day terminated the (unfavorable) trial and has kept the (favorable) USPTO proceedings going. that is not the way to quickly get a definitive answer to the issues in the case, and it basically means that I don't have any particular sympathy for RIM. those Jones Day hotshots could be briefing and crafting new, better and more realistic standards of obviousness with their briefs and their arguments. they just don't wanna. they wanna maximize their PR position (besides if they craft some good obviousness standards to definitively torpedo NTP in this case in this case, then the next patentee in the next case may take advantage of the clearer standards against RIM.

Final note on patents: I have practiced in both the USPTO and the courts for years. I have gotten good results in both places and paid handsomely for doing so. My honest, swear to God opinion is that Courts generally render saner, more sensible, better reasoned and factually grounded decisions than the USPTO (at all of the examiner, BPAI and Comm'r levels). I would have said the exact same thing b4 this RIM case became news. I have no axe to grind. that is just the way it is.

On copyright:
copyright hasn't really hampered my ability to make music. However, it is a gigundo tragedy that what I get now thru eMusic wasn't available starting about 1998. I would have purchased and heard a lot more music by now (more convenience, less reliance on record stores) and would probably be a better composer because of it.

Son of a! | January 4, 2007, 1:26pm | #

Back in 1984 there was an Apple commercial to the effect that Microsoft's emerging monopoly would dampen people's creative spiriits and sap their imaginative faculties about how the world could be.

Wrong. That commercial was about IBM, not Microsoft.

Also, from the original post:

The success of Linux...

*snicker* Really? Linux? I mean, I'll give you Firefox, but Linux is successful? I spent years using Linux as my primary OS, but really, that's only because I'm a masochist.

Sam Franklin | January 4, 2007, 1:27pm | #

Well, Sam, Im neither a lawyer nor an electronics engineer. You may have access to better tools then me, so was the patent you quoted here (#5446759) one of those invalidated by USPTO?

I don't know. there are about 10 patents in the case, each has multiple claims and each claim is separately analyzed for patentability. I don't know which claims were included in RIM's USPTO re-exam request (I assume, but did not check, that RIM was the requester). I don't know which claims were included in the court case prior to the settlement.

However, I can , even without reviewing the claims tell you that none of them read like his:

1. A system for communicating emails wirelessly.

Some people here seem to think that that is what the patent claims said and I am sure they said a whole lot more (at least in words and probably in substance, too).

Sam Franklin | January 4, 2007, 1:34pm | #

1. I almost wrote "IBM," then I almost looked it up b4 taking a chance and going with "MS." I thought 1984 was a little early to sweat MS. I lose on that. larger point still stands.

snicker* Really? Linux? I mean, I'll give you Firefox, but Linux is successful? I spent years using Linux as my primary OS, but really, that's only because I'm a masochist.

2. see the idea is that because MS commands market power, it uses this to effectively run the hardware makers to be hostile to LINUX. can we prove this? probably not. The negotiations, contracts and informal understandings between MS and hardware makers are confidential. We don't get to know one way or the other, but you can probably see at least the potential for a problem there.

Dr. Kenneth Noisewater | January 4, 2007, 2:00pm | #

2. see the idea is that because MS commands market power, it uses this to effectively run the hardware makers to be hostile to LINUX. can we prove this? probably not. The negotiations, contracts and informal understandings between MS and hardware makers are confidential. We don't get to know one way or the other, but you can probably see at least the potential for a problem there.

Actually the biggest issue regarding Linux and the hardware vendors is related to IP/patent problems:

There are massive amounts of IP/patent issues surrounding things like wireless and video hardware. Linux kernel/driver developers have to sign a NDA to get access to hardware specs (which would then require their drivers to be released as closed-source binaries -- a big no-no in Linuxworld) and/or obtain a license to write code for the hardware because the methods at work in these hardware/software combos is patented (which is a complete no-go in a GPL world as well).

In addition to these IP issues, there are issues associated with trying to release drivers for all the different flavors of Linux distributions that are out there (RedHat/Fedora, Debian/Ubuntu/Kubuntu, SuSe, Mandriva). Vendors of any software, whether it's drivers or desktop apps, don't like writing, testing, and supporting a myriad of different platforms. It is a MAJOR PITA and effort spent trying to make everything work/look right across all platforms is effort not spent improving the core features of the software.

Sam Franklin | January 4, 2007, 2:01pm | #

You have a shallow wiki-understanding of the case.

btw, the patent claim language that my patent atty magic allowed me to so easily cut and paste into this thd for discussion was directly linked from the wikipedia page.

can your newspaper (brought to you in part by RIM) do that?

Sam Franklin | January 4, 2007, 2:07pm | #

There are massive amounts of IP/patent issues surrounding things like wireless and video hardware. Linux kernel/driver developers have to sign a NDA to get access to hardware specs (which would then require their drivers to be released as closed-source binaries -- a big no-no in Linuxworld) and/or obtain a license to write code for the hardware because the methods at work in these hardware/software combos is patented (which is a complete no-go in a GPL world as well).

We are a few injunctions short of that being a realistic description of what is going on here.

the hardware makers in China are not worried about US patent law (nor Chinese for that matter).

patents are blamed because Microsoft would be furious if hardware makers revealed the substance of their discussion to the public. When you can't tell the truth, then you go to the best excuse you can find.

Russ 2000 | January 4, 2007, 2:22pm | #

you have no idea what the software world would look like if writers were actively writing for win95, win98, me, osx, win2000 and win xp at the same time.

It would look exactly like the world when software writers were writing for AIX, HP/UX, Sun, SCO, OS/390, OS/400, Win95, WinNT, etc. You tell me why the marketplace changed.

Dr. Kenneth Noisewater | January 4, 2007, 2:27pm | #

Sam:

Google "nemosoft nda" and "linux binary kernel modules" and educate yourself.

And while you're at it, find out why RedHat and Ubuntu don't include mp3 audio support out of the box in their Linux distributions.

And if you're still not convinced, research why there are both GPL and binary-only versions of the 3d-video drivers for ATI and nVidia graphics cards.

joshua corning | January 4, 2007, 2:42pm | #

P. Brooks

All my computers have been Apples, until recently- I now have a previously owned IBM thinkpad laptop on which I run (drumroll, please) Knoppix Linux.

Go back to apple...i have been down that road and it sucks ass..kernel builds, program installations, video card incompatibility...a mess. If you are running a server then fine get Linux but i doubt it with your laptop...if you really want Linux then I suggest you get a playstation 3 otherwise stick with a mac.

joshua corning | January 4, 2007, 2:47pm | #

What isn't mentioned, is how MS uses the government as their hired muscle to prey on smaller companies. MS would never have been able to bully competition into submission if not for the state of intellectual property law.

Yeah because as we can all see there has been no innovation and choice in the personal computer devices and IT market in the past 10 years and customers have suffered horribly.

Sometimes I think you guys live on a different planet with this crazy ass shit.

Sam Franklin | January 4, 2007, 2:55pm | #

Oh my god you are correct. there is no way that one could make a computer without the phillips webcam drivers or mp3 support. Absolutely impossible. Ogg won't cut it. there are no substitutes for these essential pieces of code!

I couldn't figure out who has the patent on your "linux binary kernal modules." It must be somebody pretty scary or else the hardware makers wouldn't be so petrified of that particular patent. /sarc

joshua corning | January 4, 2007, 2:57pm | #

*snicker* Really? Linux? I mean, I'll give you Firefox, but Linux is successful? I spent years using Linux as my primary OS, but really, that's only because I'm a masochist.


The Play Station 3 runs Linux...same with Google...as a desktop OS Linux is nowhere as an OS it is everywhere only invisible.

joshua corning | January 4, 2007, 3:12pm | #

*snicker* Really? Linux? I mean, I'll give you Firefox, but Linux is successful? I spent years using Linux as my primary OS, but really, that's only because I'm a masochist.

http://toolbar.netcraft.com/site_report?url=http://www.reason.com

oh yeah...open the above url...you are using Linix right now and didn't even know it :)

Son of a! | January 4, 2007, 3:19pm | #

joshua corning:

Mea culpa. In my defense, I was specifically thinking of the desktop, because the whole argument of "The market has beaten back Microsoft," sort of implies "...from a position of dominance," which Microsoft has pretty much never had on the server.

Also, I didn't know the PS3 ran Linux. Is that by default, or is it something you can separately load and tinker with?

joshua corning | January 4, 2007, 3:20pm | #

Also, I didn't know the PS3 ran Linux. Is that by default, or is it something you can separately load and tinker with?

Default...it is the OS that runs the machine.

joshua corning | January 4, 2007, 3:24pm | #

Opps i am dead wrong...linux is an add on..worry about that...

From wikipidia

Linux

Originally Sony stated that they were going to pre-install Linux on the PS3's hard drive, but current units shipping do not include Linux pre-installed. Instead, Sony has made an option in the XMB menu to install other operating systems.[59]

Fedora Core 5 and Gentoo have been run on the PS3;[60][61] however, Fedora Core 5 has not been optimized for the relatively low amount of RAM. The Sony-sponsored Yellow Dog Linux for the PS3 was released on November 27, 2006 to the YDL.net community, and was released on DVD on December 11, 2006, and finally as a publicly available image in late December.[62]


Because we have plans for having Linux on board [the PS3], we also recognize Linux programming activities… Other than game studios tied to official developer licenses, we'd like to see various individuals participate in content creation for the PS3.

joshua corning | January 4, 2007, 3:28pm | #

worry about that.

*sorry about that

Dr. Kenneth Noisewater | January 4, 2007, 3:34pm | #

Sam:

Now you're just being an asshole. You tried to claim that the reason that Linux hasn't caught on is because hardware vendors are in cahoots with Microsoft to prevent the creation of Linux drivers for their hardware. My response was that most of the issues with lack of Linux driver support stem from (1) IP issues associated with vendor hardware, and/or (2) a ridiculously segmented market that made support of "Linux" a nightmare because there are so many different flavors of it. I'd also add a third reason: small market size -- a hardware vendor doesn't want to go through the expense of developing a driver for their hardware if it's only going to help sell a very small number of units.

Nonetheless, there are a few linux developers out there interested in jumping through the NDA and patent hoops to write a driver for the latest whiz-bang hardware that users would like to get working with Linux. One such person was the guy who wrote the Phillips webcam driver. However, because of the NDA, he had to create a binary-only driver. The fact that this driver was binary-only led to a significant amount of friction between him and the core Linux kernel developers because the kernel developers are idealistic, GPL-is-the-only-way-to-go sorts. The whole situation became such a headache for the guy that he dropped the project altogether.

There are lots of hardware vendors that are willing to provide details necessary to write a Linux driver -- provided the Linux developer signs an NDA or obtains the necessary patent licenses. However, signing an NDA or licensing a patent means that the driver would have be a binary kernel module and would not be distrubuted with the mainline kernel. As such, outside volunteers aren't eager to take up such work for free. It's left to the hardware vendor to write the driver and at that point it becomes of issue of, "How many more widgets will I sell if I go through the expense of developing a Linux widget driver?" For some, (like ATI, nVidia, Epson) the return is worth it. For others, not.

As far as ogg vs. mp3 is concerned, yes ogg is a replacement if you're not interested in playing your music on the vast majority of portable players on the market. However, most people are going to want to listen to their already existing collection of mp3s. They just want mp3 to work out of the box on their OS of choice. That's not possible with the majority of mainstream linux distributions because of patent encumberances. It's just the sort of thing that might keep your average user from switching to Linux.

I'm still trying to figure out what sort of threat MS could hold over the heads of all these HW manufacturers to force them to not provide information or support for Linux driver developers. Can you help me out here? Who are these HW manufacturers? Because nVidia sure don't seem to be cowed by MS. Neither do ATI. IBM? Nope. Intel? I was just using some optimized Linux libraries they developed the other day. Who are all these sinister "Chinese hardware makers" that would be eager to freely flaunt patent protections and provide Linux drivers if only they hadn't signed a deal with the devil that is MS.

I eagerly await the exhaustive list...

Son of a! | January 4, 2007, 3:37pm | #

Thankee-sai.

Mike Laursen | January 4, 2007, 3:57pm | #

Let's not forget that anti-trust regulation forced Xerox to essentially throw their OS in the trash which allowed the scavengers named Jobs and Wozniak to grab it for nothing.

That's not how it happened. All that stuff they say about Xerox "fumbling the future" with clueless top-level management and no idea how to market their computer products. All true. I saw it with my own eyes.

juris imprudent | January 4, 2007, 4:46pm | #

Sam

Only a pomopus ass would argue the difference between "Electronic mail system with RF communications..." (the very title of the patent) and 1. A system for communicating emails wirelessly. What do you think wireless usually means? Smoke-signals?

NTP should never have gotten the patent. They were as much an extortion scheme as "inventors". SCO Group has tried a similar thing with linux (IP rather than patent). Fortunately, lacking an absurd patent, SCO is going down in flames.

val | January 4, 2007, 4:54pm | #

What do you think wireless usually means? Smoke-signals?

Patent pending!! Patent Pending!! I'll sue your ass!! You better back off my patent, buddy!! Im willing to license my Smoke-Signal email technology to you for a nominal fee.

Sample of a (Louder Than Bombs) Sample | January 4, 2007, 6:43pm | #

I eagerly await the exhaustive list...

you don't want to believe, you are sleeping. you don't want to believe, you are sleeping. you don't want to believe, you are sleeping.

Kevin Carson | January 4, 2007, 10:05pm | #

Um, considering that Microsoft's monopoly power derives mostly from a state-enforced monopoly (its so-called "intellectual property), calling for even further government intervention to counteract that monopoly seems a bit clueless.

Eliminating MS's monopoly power would require only one very simple thing: stop enforcing its "intellectual property."

Sam Franklin | January 5, 2007, 11:27am | #

Eliminating MS's monopoly power would require only one very simple thing: stop enforcing its "intellectual property."

When has Microsoft ever enforced its intellectual property? Have they ever brought an infringement to court (because that is how a party "enforces" intellectual property)?

I have seen cases where Microsoft is a [b]defendant[/b] in a patent suit. Can't recall any where they were [b]plaintiff[/b].

Have they been plaintiff in any high profile copyright infringement suits? I mean, I remember some talk about two years ago of some company affiliated with MS suing LINUX, but (1) supposedly it was the other company and not MS bringing that suit; and (2) I seem to recall that they never even made it as far as filing a complaint.

i have heard MS complain about piracy in both the US and China. However, complaining about infringement is not "enforcing intellectual property." Rather, bringing a lawsuit under the patent, copyright and other ip laws is "enforcing intellectual property." Do you have any case cites for us, Kevin Carson?

Sam Franklin | January 5, 2007, 11:30am | #

Patent pending!! Patent Pending!! I'll sue your ass!! You better back off my patent, buddy!! Im willing to license my Smoke-Signal email technology to you for a nominal fee.

some debates are timeless:

http://www.bustpatents.com/sec101/signlpat.doc