Saturday, September 14, 2002

Lawrence Lessig responds to my thoughts on his concerns with "opaque creativity."

I agree that the Supreme Court's thinking is at the heart of this issue, as you quoted, that the "ultimate goal of the patent system is to bring new designs and technologies into the public domain through disclosure." But this system is one which is designed not to compel the inventor to make a disclosure, but rather to provide an incentive for such disclosure.

I like your description of the patent, the "here's how to copy my invention" document. A fundamental problem for patent applicants, though, is that the patent document can also offer a blueprint for "here's how to engineer around my invention." Furthermore, the expenses involved in patent application, argument to achieve patent issuance, and litigation to protect an issued patent ultimately takes patent protection out of reach for most citizens.

But citizens have another option, that of keeping an invention a "trade secret." Thus the system works that I have a choice between receiving some special protection or no special protection. If I want the state to grant me a "limited time" monopoly, I may apply for a patent, risking the possibility that a competitor may engineer around my solution, but receiving some ability under the law to prevent infringement in my specific methodology or design. In exchange I ultimately agree that after some "limited time" the specific methodolgy or design receives no further protection and becomes the property of all citizens. This does not necessarily prohibit me from continuing to build a business around the invention as I may still effectively compete on efficiency or distribution or quality or brand recognition. Or, of course, on further innovation. Alternatively, if I do not want this limited time monopoly (or I cannot afford it), I am still free to do business but without any special protection for my specific methodology or design.

In your proposal (if I understand it correctly), you would provide the software developer with copyright protection for the object code (or the opaque version) of his product only if he also agreed to place the source code (or the transparent version) of his product into escrow with the State. This escrow might be secret, preventing any competitor from viewing the precise implementation of the invention, but would ultimately be released by the State at the termination of the "limited time" monopoly.

Thus software (and other copyrighted "opaque" inventions?) would only be treated as property, and accorded any protection from theft, if the transparent version of the invention was held by the State and released at some time in the future. Thus the inventor of opaque IP would be compelled to divulge the "secret sauce" of his invention and would never be accorded the same choice between some value offered by the state (a "limited time" monopoly in the case of patents) vs. the ability to do business without such a monopoly (a "trade secret" with the possibility that the secret sauce would be reverse engineered). Furthermore, as software is infinitely duplicable for nominal cost, the inventor would have all value in his invention stripped from him by the State at the end of the "limited time" of protection, as the State would become the distributor of his invention. The corollary with a physical product would be for the State to give everyone a free cotton gin when Eli Whitney's patent ran out.

It seems to me that for your proposal to work, the opaque version of the invention should still receive copyright protection, while the inventor would receive some additional incentive for disclosure of the transparent version. One suggestion as an example -- perhaps government funds could only be spent on software that had been submitted to the secret limited time escrow scheme. Thus, I could chose to keep my software secret, but would then not be able to sell to the government.

If opaque creativity does not receive the same protection as transparent creativity it seems to me that we will be creating an enormous problem in determining just what is an opaque creation, and what is a transparent one. The other example in my earlier note is an interesting one -- should the romance novels generated by an automatic novel writing software receive copyright protection if I do not submit my software to the escrow plan? What about special effects in movies -- should Pixar be required to escrow their animation software for Toy Story to recieve copyright protection? How about the musician that programs a sound into a synthesizer -- should the musician be compelled to escrow the specifics of this wave form in order to receive protection for the song?

I do not disagree with the idea of an extension to existing copyright and patent law which would create an incentive for inventors to disclose their means of production, and I see your argument that this is a logical extension of the State's objectives in promoting the "Progress of Science." However, I believe that such an extension should be done in a form which offers an incentive for participation and does not become a compulsion for the inventor.

Friday, September 13, 2002

Thanks to Doc Searls for suggesting that I add permalinks to my blog -- now if I could just get this new feature to behave correctly!
I have been thinking a lot about Lawrence Lessig's arguments on the Future of Ideas. I am finding myself in agreement with him regarding copyright and the length of time something should be protected before becoming part of the public domain, but in disagreement with him on the subject of "opaque creativity."

My primary issue is one of enforcement, although I have philosophical concerns as well. On the subject of copyright, the role of society and government is on the side of the IP creator, working to protect the individual's rights for a period of time. After that period, society withdraws support for the individual, and allows free use of the IP.

The challenge with Lessig's arguments about transparency is that it would put society and government in a role of opposing the IP creator as, after the period of protection, the IP creator would have to be compelled to disclose the method of production or presentation. What would our society look like if we had to create enforcement structures which were compelling every IP creator to disclose their process or technology of creation? And what are the limits of this disclosure?

Lessig is also wrong that IP creation in the past was always transparent and that today we have a new problem of obscuring production or presentation. Coca-cola, for example, has never disclosed their recipe for Coke -- Would Lessig compel them to disclose this recipe? Is this the kind of transparency he is looking for?

Nothing, however, prevents Pepsi from "reverse-engineering" Coke and providing a competing product using their own formula. And this could be true for the IP issue that Lessig is concerned about as well. We might not compel the developer to release source code for the software program -- but we would also not prevent an independent party from creating a duplicate through their own independent efforts.

Take an example of the romance "novelist," who uses a computer program to automatically generate these pulp fiction novels. Should we have a society that compels the novelist to disclose the source code for the generating program at the time that the copyright expires for the novel?

I believe that such a requirement would result in a system that would have to exert control over its citizens to a degree which would undermine the principle of individual freedom which have demonstrated over the past 200+ years to create the foundations for a just and prosperous society.

Wednesday, September 11, 2002


Enjoyed as always your Loose Wire column, but this time (9-11-02) you definitely have a loose wire... The only thing that will hold back MMS is a mistake in the way that operators price the service -- a mistake that even if made, will be rapidly fixed.

Why do you love SMS, you write? Because SMS is a way to casually socialize, it is a way to be brief, and there is an intimacy in its use.

I don't disagree with these comments but I think it doesn't capture the richness of this developing mobile culture. Kids in Finland sending SMS messages to their friends before going to sleep just to say "good night." A message from the bar from one girlfriend to another saying "here he comes" when that tall stranger starts over. In short, the ability to remotely share an experience between two people.

For all the reasons you said that you like SMS, and for the rest of the way that this mobile culture is developing, I'd say that a picture is worth 1000 words.

In Japan the numbers are already proving this. KDDI is seeing wholesale conversion of their entire user population to picture phones. For the first time ever, new subscriber growth for KDDI topped market leader DoCoMO -- due to the picture technology that they launched first and more effectively delivered in a useable package than other providers.

Lets address your SMS arguments again:

Low commitment conversation -- MMS has the same asynchronous properties with the advantage of more interesting content

Brief messaging -- Take a snapshot and push send. This is actually briefer than typing out a message.

Intimacy -- same privacy in sending and receiving.

Maybe I don't understand your complaint -- I agree that MMS doesn't replace SMS, that these are two different mediums with two different uses. But perhaps this message has succeeded in getting you to rethink your pronouncement that MMS is a daft idea.


Ted Shelton

Chief Strategy Officer
Borland Software Corporation