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ESR Invited To 'Advise' USPTO
alannon writes: "Most of this article, posted on MacWeek's site concerns an 'open source sermon' that ESR recently gave to a group of Mac hackers at the annual MacHack convention. Most of his speech was taken with a grain of salt, though he left a gem of an annoucement: He's been invited to join the the U.S. Patent and Trademark Office as a member of its citizen's advisory committee! I'm sure he'll make lots and lots of friends there. "
I'm posting this here because I think there are many on the open source community that don't realize the immense harm that would come to distributed control of IP if patents are abolished or weakened. If that happens, the guys with the most money win by default, since the smaller guys will have no protections whatever.
The following is a letter I wrote to LWN a few weeks ago outlining part of my argument. It will rub a lot of people the wrong way, but we can't afford to destroy the patent system unless we really want Microsoft and other huge companies to call all the shots. I don't think a lot of people here have thought these issues through.
Letter to LWN (at http://www.lwn.net/2000/0420/backpage.pht ml)
I've gotten several challenges to my assertion about patents as a desirable thing
(mostly asking for examples of small inventors that actually did profit from
patents) so here's my quick response, FWIW:
Anyone saying patents don't do immense public good, and provide worthwhile,
needed, and *effective* protection of small inventors against large corporations
is simply ignorant of the history of even quite recent technology. Many
inventors started small, but because of patent protection were indeed able to
profit greatly from their inventions.
From the "gararge-shop" POV, well, just off the top of my head, there are the
examples everyone is familiar with: Bill Hewlett and David Packard (HP,
instruments), Steves Jobs and Wozniak (Apple, home computer), and outside the
computer industry, folks like Edwin Land (Polaroid, polarized materials and
instant camera), Chester Carlson (Xerox, xerography), Henry Ford (Ford,
affordable automobiles), Thomas Edison (GE, light bulb, motion pictures,
phonograph...), and Alexander Graham Bell (AT&T, telephone), all of whom
profited greatly from their patented works. (One could argue for the inclusion
of Jeff Bezos in that list, although around here, that's a bit like whacking a
hornet's nest with a stick...)
But the classic twentieth century example of patents providing exactly the kind
of protection I'm talking about is probably that of Philo T. Farnsworth, whom
you may never have heard of, although you likely use his invention (electronic
television) every day. Farnsworth was the prototypical individualist inventor
who persevered against all odds and eventually defeated David Sarnoff and
Vladimir Zworykin of the immensly powerful RCA. RCA was truly the Microsoft of
its day in terms of control of the market and underlying technologies through
acquisition - often under severe economic and other pressure. RCA had a policy
of never paying royalties for any technology - a policy they managed to uphold
until they met Philo Farnsworth, who just wouldn't give up.
Farnsworth fought virtually alone against all of RCA's power for seven years
before the final court rulings that his patents had clear validity and
precedence over Zworykin's, forcing a tearful RCA lawyer to sign a royalty
payment agreement to Farnsworth. (Farnsworth publicly displayed television
*five years* before Sarnoff unveiled RCA's infringing version to the world
amidst great fanfare at the 1939 World's Fair, leading many to believe Sarnoff
and RCA were the inventors of television - sound like anyone today?)
Farnsworth's experience is, if anything, a case study for the need to
*strengthen* patents and either streamline patent appeals or extend the length
of patents when thier commercial utility is impacted by unsuccessful challenges.
(World War II intervened, and the government outlawed television for the
duration of the war (the technology was needed for radar, night vision and other
inventions Farnsworth then worked on), and so Farnsworth's patents expired
before he could profit from them.
Do you still think patents are a bad idea? I'd argue experience shows that
patents should be strengthened and perhaps that the duration of Farnsworth's
patent should have been extended, due to RCA's clear abuse of the patent system
and the courts. (I also think the government should have been upright enough to
grant extensions in the name of fair play to all inventors whose inventions were
commandeered for the war effort, but that's another issue entirely.)
History clearly shows that often patents are all that stands between real
progress and innovation and the acquisition by force so typical of a Sarnoff or
Gates. Strong patent law is the *only* effective defense against large
companies stealing technology from small inventors. (What RCA tried to do could
be accurately portrayed as theft.) I'm amazed more people don't get this, but
they tend to avoid history, and fail to recognize that our American forefathers
were wiser than we are in pretty much every way.
Although it's not perfect, there are very good reasons the patent system is the
way it is, and we meddle with it at our peril. It would be nice to see a
balanced discussion of this issue rather than the knee-jerk reactions that are
more common in the open source/free software community.
Dub
P.S.: I recommend spending some time browsing through some of the links below
to see how many of the great inventors of recent history were independent - the
protection provided by the patent system allowed them to develop and in many
cases profit handsomely from their inventions. You might be surprised at the
diversity and "ordinariness" of many of these inventors of important
breakthroughs - they're not such an elite group as you might imagine (the list
is somewhat US-centric - our culture celebrates invention, and so links for US
inventors are much easier to find):
National Inventor's Hall of Fame
MIT's Invention Dimension Archive
Good Internet Public Library list of links to Inventor information
"The future's good and the present is nothing to sneeze at." - Roblimo's last
I understand your concerns. But those pro-corporate and commerce-friendly stances are why ESR is a good choice. He knows how to talk to the suits. He understands their points of view.
Who do you think is going to get better results: a man who walks into a new office and says, "Okay, there are a couple problems here, I see a few misunderstandings, here's a better way," or a man who cannot compromise in the least? Someone who walks in and immediately starts off with, "No, all of you are wrong. There's only one way to do this, and it's mine."
How are we going to see "real change," as you say, if we aren't also willing to make changes?
You cannot apply a technological solution to a sociological problem. (Edwards' Law)
Personally, I believe this line to be pure bull - not only in the Mac community, but also in the Linux community.
I know many people who started using Linux, and couldn't write, without help, a single, simple, syntax-error-free line of C code.
Now that may sound very harsh against Linux users - and it is very well meant to be. All in all, the technical competence of most Linux users IS above average. But that doesn't mean that they all have the competence of commercial quality programmers, or even mediocre programmers. I doubt the majority of them could fix a simple buffer overflow bug given adequate debugging information that points the bug out directly.
The claim that there are "40,000" contributors to "Linux" is very misleading. First off, Linux is more than the kernel. It is all the programs that it takes advantage of or requires to get the job done. Linux would be NOWHERE without programs like 'make', 'gcc', 'gdb', and all those similiar tools. However, those tools WOULD exist without Linux. So, that number (which is pure estimate on the part of anyone claiming it as fact anyways) most likely includes the developers of all the programs that Linux takes advantage of... and in this case, that is like saying a printing company (Which can be run by a handful of people - a manager, a couple secretarys, a couple graphic artists, and a few printing press operators) employees "hundreds of people", by counting the foresting company, the people that operate the paper-making machines, and the people who produce the ink.
IF, on the other hand, said number was restricted to the heart of Linux - for TRUE "Linux" is nothing more than the KERNEL - I wouldn't be surprised if, over the course of Linux's 8+ years of evolution, 4,000 (not 40,000) people have contributed something to the source code for some program for some platform or another - but even then Im wondering how many of those contributions were very minor ones - such as a bug fix - and how many contributions overlapped. How many people provided moderate (more than a few dozen lines of code) contributions, and how many provided SIGNIFICANT conributions (on the lines of a few hundred or thousand lines). I'd guess more along the lines of 400 and 40, respectively. And how many Linux kernel contributors are well known by any kernel hacker? I think the number falls around 4 (to 8).
In the end, the true core work of a project is done by just a few people (scaled to the size of the project, of course). While they may take advantage of existing libraries (such as a PNG or JPEG library, ZLIB compression, a communications archiecture, or some such), that does not truly increase the size of the development team - that actually gives them less of an excuse to have large amounts of people. You can't claim the authors of these libraries on your dev team (tho giving them credit for their work and it's use in the project is something else entirely different).
And finally, what if the project is commercial? The problem these days is that Free Software (Free as in Freedom of Speech/Open Source) is equated these days with Free Software (Free as in Free "Beer"/No Cost). This is a very dangerous equation that is being made, and even promoted by so-called experts such as Richard M. Stallman. Eric S. Raymond has a clearer view, but it is still distorted by the belief that everything can and should be source-available. In many cases, especially Games, this option isn't available while the product is still commercially viable. Hence why Doom and Quake were not Open Sourced until years after they were off the shelves and replaced by better products (in the cases of Doom and Quake, 2 generations of products later).
- Chris Jacobson
(MaineCoon)
Hunt your preferred prey at Aliens vs Predator MUD. Join the war at avpmud.com port 4000
The Bazaar, as ESR portrays it, simplifies mass programmers down to intelligent testers refining code and reducing bug counts - this is true, but this does not necessarily mean better, more stable, or more usable software. More problems are revealed and more features creep in, but the real value of Open Source is the sense of personal responsibility people take (at this point in time anyway - perhaps the revolutionary attitudes) to invest their time, talent, and energy in producing something of quality.
Now applying this same attitude to government - I find it pathetic to see the change in the amount of dedication and commitment we currently show to our government. One look at the rusted ornate decorations on most government buildings indicates that most of the American Public takes little responsibility now in making and maintaining our government as something truly valuable. We did at one point in time, but I think Americans take for granted that someone else will take personal responsibility for our government. It's not until these notions of personal responsibility and irresponsibility replace the order/chaos mentality in the minds of the public that a true change in the IP business models will take place.
5 hour keynote speech? 5 HOUR? Good god. Castro could learn from this man.
When Emperor Nero of Rome gave speeches, it was said that there were spies in the audience, and when he finished (eventually), the first person to stop applauding would be executed. Likewise with Stalin.
5 hour speech, huh? Open source really brings out the fanatics!
;-)
--Remove SPAM from my address to mail me
As somebody with their hands in both sides of the open source pie, I can honestly say that it's nice to see that the government is responding to criticism from the open source movement. However surely ESR is the wrong person for this kind of thing since he is known for his pro-corporate views and commerce-friendly take on free software.
As a consultant who has worked with several major software houses over the last few years I've been part of the increased uptake of open source solutions into the e-commerce market, doing my bit to promote Linux and other products like Apache to customers for whom scalability is not 100% essential.
Anyway I've talked to some of them over a few beers (expense account of course) and they all seem to say the same thing about the open source luminaries. They are worried about RMS - about his rabidly anti-corporate stance and his Communist philosophy - and would much rather see ESR move into the limelight as he seems extremely sympathetic to companies that want to promote a tech-savvy image in the software market.
So surely ESR is the wrong person to let onto this USPTO committee if we want real change in this area? It seems likely he'll be all bark and no bite, and when it comes to the crunch he'll fold and let the corporations stick it to him in a very private place.
At least RMS wouldn't give in to corporate demands. Of course the fact that he looks like he's been living in a cave in the forest with a bear since the 60s wouldn't help, but it'd still be better for all of us.
---
Jon E. Erikson
Jon Erikson, IT guru