Slashdot Mirror
Publisher Speaks Out Against Amazon Patents
andy@petdance.com writes, "In a
recent Ask Tim article on the O'Reilly Web site, Tim O'Reilly takes Jeff Bezos to task for his attempts at patenting 1-click and the associates program. An Open Letter to Amazon is provided for adding your voice to Jeff & co." O'Reilly has a very thoughtful letter about how Amazon's attitude would have killed the Web in its infancy. He also submitted a letter to the IP mailing list which explains his thoughts a bit more. See also NoWebPatents.Org which is running their own anti-Amazon boycott, and our previous story about RMS's call for a boycott.
Dave Winer wrote an article on how we could escape the patent straightjacket at:s osForSenorBezos
t ented/
http://davenet.userland.com/2000/02/28/noMorePe
One of his points was that we should all put our ideas on the web and let them be linked to. To that end I'm putting my idea for a memory efficient hashtable on the web:
http://www.worldforge.org/website/servers/notpa
Ideally someone will make a searchable open idea database; but, in the meantime, the web and search engines can serve.
That's right, a method twice as efficient as the old way of shopping! I don't require one whole wasteful click to purchase a product - only the mouse_down action is captured, and immediatey selects the product of your choice to be whisked to your choice of locations!
What then to do with the remaining mouse_up operation? No need to squander - you can purchase yet ANOTHER product by hovering over another item and releasing the plastic rodent from your grasp! In the same time as it would have taken you to purchase a single item at OTHER on-line shopettes you may have heard of, you have two delightful items in the air and almost there!
I being a genererous person who cares little for material things and has a boundless fondness for all things O' Riley, hereby place this idea (even just the mouse_down portion) in the public domain to be used by all without recompense.
Now the chorded binary mouse button quantity selection technique, that's another story...
"There is more worth loving than we have strength to love." - Brian Jay Stanley
Once this goes to court, there's very little chance it will stand up. Unfortunately, as more of these stupid patents go to court, the courts will require better evidence than they do now, until eventaully patents become worthless.
Er. . . this patent has gone to court, and it has survived so far. Amazon obtained preliminary injunction, despite the arguments of a well-represented Barnes and Noble that the patent was invalid. Now, of course, this is hardly a final adjudication: all the court determined was that there was a substantial likelihood of success on the merits. More needs to be discovered, argued and presented to the Court, but this brings me to my point:
Whatever you might think of patents generally, the invalidity of this patent is not all that clear. While it is politically correct in this forum to savage the USPTO for issuing it, dropping lines like, "a trivial application of cookies," the truth appears far more interesting. It is far more difficult to make a legitimate, legal, argument as to this patent's invalidity.
Preliminary injunction in a patent (as opposed to a copyright or trademark) case, particularly when it stops a major enterprise from continuing business as usual, is quite rare. All a defendant needs to do is introduce evidence of invalidity or unenforceability that defeats plaintiff's claim there is a "substantial likelihood" of winning on the merits. This is the easiest standard B&N will ever face in this matter.
From now on in, B&N must prove invalidity to a jury by clear and convincing evidence, which is the civil law equivalent of "beyond a reasonable doubt." The jury will be told to find for the plaintiff unless they harbor an unwavering, clear and abiding conviction that the patent is invalid. Oh yeah, that will happen.
Not.
This is one of the principal reasons that plaintiffs win over 75% of patent cases that go to trial -- a jury, overwhelmed with reams of legal instructions from the judge and presented with technology it barely groks isn't going to harbor an unwavering, clear and abiding conviction of anything. Ultimately, what they will see is the pretty deed, and the judges instruction that, if they aren't sure, they should find for the plaintiff and go back to their families. But that's only the practical side of it.
It is one thing to say, without more, that the issuing of a patent is bad policy and should not have issued therefor. On that point, I might even find myself in agreement. It is another thing entirely to actually argue that the patent *IS* invalid. B&N was in a position to present their best prior art, and they didn't induce even the slightest doubt in the judge that there was less than a substantial likelihood that the patent was valid. In view of this, how, exactly, are they going to convince a jury that there isn't any doubt that the patent is invalid?
But to take this a step further, let's assume that Amazon actually deserves its large price-to-earnings ratio and combine it with something from http://www.oreilly.com/ask_tim/am azon_patent.html:
By scaring away other e-commerce sites, Amazon ensures that fewer people will find the Internet useful. That means fewer websites in the future, and therefore fewer people, and so on. Since Amazon depends on having a large user base in the future, why is it abusing a weak patent-checking system in an Internet-destroying way?
--
The shareholder is always right.
Good work O'Reilly. You might say that it has taken a long time from the initial outcry over Amazon's one-click shopping to O'Reilly doing anything, but it's not only great that he's responded, but that he has responded the way he has.
Everyone take note.
First of all, he noted that there was a community feeling of disgust over the software patent in question. Now, while O'Reilly makes a lot of cash from Amazon's business (a fact freely admitted to by O'Reilly), instead of refusing to "bite the hand" that at least partially feeds him and his company, O'Reilly chose to chase up the issue.
i.e. O'Reilly is putting his money (and influence) where his mouth is. It has been a long time claim that O'Reilly supports Open Source, and here is definitely doing the right thing [tm].
But not only that; how did he respond? First of all he wrote a private e-mail to Bezos, which wasn't necessarily a "you guys are evil! wtf do you think you are doing?!?!?", but a well-worded even-handed explanation of his situation. When that met with unsatisfactory results he has upped the pressure, with the petition mail, and public responses.
Sure, you might say, he's just protecting his own interests by mollifying the community and not abusing Amazon. But I would disagree with that. Not only has he made it clear on a personal level that he is not happy with Amazon's policies, but he's willing to step into the public space to state so, while not taking to anyone with a blowtorch.
And lets face it, if all Linux advocates, or any advocates whatsoever were so careful, and measured about their approach, there would be a lot fewer holy wars, and probably fewer lawsuits.
Cheers,
SuperG
Obviously, Amazon wants to set new records for losing money. Previous steady drains will be dwarfed when they finally piss off the largest chunk of their customer base. They'll set new records for hemorrhaging cash. And, if past performance is any indicator, their stock will skyrocket as a result.
Who knows, in a few months they may end up buying M$...
"I'm a scientist! I don't think, I observe!" - Dr. Clayton Forrester
See: my comments on the Amazon 1-click patent. --p