November 30, 2006 4:00 AM PST
Perspective: Making sense of the tech divide over IP
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I hope Ballmer's remarks refocus the debate and allow the technology community to better approach the balance between the exclusive rights of private property holders and those using their creations. This balance is clearly out of whack, fostered by au courant reportage and blogging that dissuades many in the IT industry from public admission that they own valuable property, and that they have a right to be compensated for its use.
IP, i.e. ideas that can affect physical processes, is property, which can be privately held. We should embrace that supposition, but it has divided our industry. Yet the legal obligations attached to private property confound some who see them as an inconvenient obstacle to the sale of their digital offerings. And they have gone about doing everything they can to radicalize the notion that IP sits on equal footing with other forms of property.
Some of these parties say IP doesn't exist at all, that it's a figment created by corporations to rule the world. Others insist that the interests of society outweigh the interests of creators. Still others want to pass public laws outlawing private ownership of certain IP because unfettered access to that property is, in their view, a natural right.
This chorus call is highly troubling. Protecting private property?-the default in most civilized societies?-remains an important public policy objective. It's built on millennia of acquired knowledge which, in the aggregate, says that private property protections wrest the most out of limited resources. And this in turn benefits society.
Intellectual property forms the basis of our industry's offerings. It can be traded, sold, contracted out, broken up bit by bit, sublet. Consequently, IP can be protected like tangible property, too. These protections--like copyrights, trademarks, trade secrets and patents-?outline the rules of engagement for end users. They bluntly say that "the creator allows you to use his/her property in such-and-such a way, only."
Why should IP be treated any less stringently than tangible property? The answer is: it shouldn't.
Which brings me back to Ballmer's statement. Sadly, his bedrock precept received little overt support in the press and on blogs. That bodes poorly for our industry and for countries with advanced IT sectors.
Since we produce fewer tangible goods, more and more of our wealth depends on IP that can be protected. Undermining private-property rights interferes with growth, not just for U.S. companies, but a significant majority of global companies--in developed and, importantly, developing nations--that look to emulate American IP/IT industry success.
To be sure, property law evolves. Free/communal IP no doubt plays a growing and integral role in the creation of goods and services that the world desires. Still, a better balance needs to be struck.
All forms of IP ownership can--and should--exist together to everyone's benefit. That's why the debilitating trend to belittle private IP serves no legitimate end. Left unchecked, it will destroy the underpinnings of our industry.
Biography
Mike Wendy is director of grassroots and media relations for the Computing Technology Industry Association (CompTIA). Both Microsoft and Novell have been long-standing members of CompTIA.
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IP, Steve Ballmer, property, balance, creator
appropriated when they ported CPM to the 8088 processor and
MSDOS took off. I assume the MicroSoft has paid for the
technology they consistently reverse engineered in the early
days of Windows 3.x. I assume MicroSoft has paid PARC for the
technology they appropriated to create Windows in the first
place.
That said, what is the IP involved? Your article doesn't make that
very clear. If we are talking protocols, then the community is
best served by permitting interoperability. If you are talking
specific algorithms not required to promote interoperability,
then there could be a legitimate beef here.
However the patent office appears to grant patents with little
regard for originality. This office appears to prefer that the test
of a patent be conducted in court. Given the overwhelming
power that MicroSoft can assert in court (and over the executive
branch), I think these issues deserve an open discussion. Let the
community at large judge the issues.
After all, Mr. Balmer is the guy that tried to get congress to shut
down the open software community as unfair competition!
Rights to real property are not as absolute as you might think. Fair use of IP is broader than the originators might like. Further they are not as unique in their work as they think.
In the end what sets people like me who can think up inventions and IP and content and movie plots, all while signing new songs in the shower and others who are demanding to be compensated for the same thing is that they are better at getting their work out in the public, or have the talent to take an ear cringer of a sing and make it music.
This is a distortion of the tradition argument. Going back to Elizabethan times the debate has been one between the natural rights of IP creators and the need for a vibrant public domain to spur future creation. Unless we view intellectual property as a limited, granted right, flexible and negotiable, we will starve our public domain and strangle future scholarship, innovation, invention, and creation.
"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it." -Thomas Jefferson
Also in case Mr. Wendy didn't notice, the Supreme Court a few months back blew a big hole in the metaphor that says "IP" is just like physical property. The unanimous Ebay vs. MercExchange decision said in no uncertain terms that patent holders do NOT have an automatic right to exclude infringers. So a patent holder's cries of "get off my property!" don't really have much relationship to the law as it currently stands.
The long-standing concept of fair use in copyright law also illustrates the bankruptcy of the property metaphor. Can you imagine someone invoking "fair use" as a defense for using their neighbor's bicycle without asking? That would be ridiculous, because real property like a bicycle is not the same thing as copyright. Different sets of rights are involved.
Patent and copyight should probably always have their place in the law and the economy. But the tired metaphor of "intellectual property" (which was little-used in America before the 1980s and STILL doesn't appear in statutory law) should probably be put to bed, not trotted out repeatedly by lobbyist hacks.
Fair use or not, if I take someone's bicycle (or CD), I have taken from them and preventend them from using (or acquiring the revenue from the sale of the taken CD) -- because it is in fact, a physical item.
The same set of rules cannot apply to concepts or ideas. That's not to say rules shouldn't apply and that IP should not be protected under the law, but certainly not in the same way as property.
Commons-based peer production, peer distribution, and other innovative techniques that harness the nature of knowledge (IE: that it has a marginal cost to the producer of zero) are not going to go away. No matter how much some people try, the laws of nature will always win out over outdated laws of man. History will put ideologues like Mike Wendy into a similar context as those who wanted to hang scientists for suggesting the world wasn't flat.
patents on hardgoods make a heck of alot more sence then patents on business process and software (previous art and mathmatic calculation are both unpatentatble and are both software).
Since patents are not going away; Patents for defense of a product is one thing but patents held and used offensively is unacceptable. I view "offensively" as patents used to maintain barriers to entry for new competition or used for fishing expiditions by Trolls.
Patents should be an expense to maintain (for limited time) recognition for a process. Patents should not be a revenue driver for use when you can't compete on the basis of a quality product.
Have the Linux developers broken into Microsoft headquarters to steal that property? Why did not Microsoft do anything to prevent them from getting access to that property? If you leave your bycicle on the street and after 2 months someone takes them, do you expect law enforcement to do anything about it? is the person a thief?
In fact what Balmer was talking about, if it is true, did not involve Linux hackers breaking into Microsoft's premises and taking Microsoft's property. And it did not involve them taking property that Microsoft failed to protect. What Balmer is talking about is exactly this: "Content creators" (the Linux hackers) have created content, but this "private property" their's is MINE! MINE! MINE! Why? Because there are laws that allow me to register something I "have" and then confiscate anything that resembles it and make it mine.
So this was a very bad example. Without patent law the "IP" in Linux belongs to the Linux creators not more and not less than the "IP" in Windows belong to Microsoft. Even if some of it is similar or exactly the same. Patent laws are confiscating this "private property" from one party and give it to the other party. Now how do you justify taking private property from one private party and giving it to another private party? In the United States the justification is coded in the constitution, and it is only to enhance human knoweledge. It is not to protect the owners of private property. It does exactly the opposite by taking private property and giving the rights to another private party. And its only justification is the good of society.
Not that private ownership of "tangible property" is an absolute truth. The king might tax your tea. You might find it a bit too much. So you kill some of the king's soldiers and eventually the king's soldiers and the king's tax collectors go away. Protection of life is not that absolute either. The king's soldiers' lives are to be protected, unless the tax on tea is raised a bit more than acceptable, in which case it becomes OK to kill them ...
So king Balmer wants to tax Linux. His army of lawyers say: "the creator allows you to use his/her property in such-and-such a way, only." Blessed be the creator.
Now if King Balmer would only poit out what tea eactly is to be taxed, the Linux hackers are ready to throw it into the sea!
Have the Linux developers broken into Microsoft headquarters to steal that property? Why did not Microsoft do anything to prevent them from getting access to that property? If you leave your bycicle on the street and after 2 months someone takes them, do you expect law enforcement to do anything about it? is the person a thief?
In fact what Balmer was talking about, if it is true, did not involve Linux hackers breaking into Microsoft's premises and taking Microsoft's property. And it did not involve them taking property that Microsoft failed to protect. What Balmer is talking about is exactly this: "Content creators" (the Linux hackers) have created content, but this "private property" their's is MINE! MINE! MINE! Why? Because there are laws that allow me to register something I "have" and then confiscate anything that resembles it and make it mine.
So this was a very bad example. Without patent law the "IP" in Linux belongs to the Linux creators not more and not less than the "IP" in Windows belong to Microsoft. Even if some of it is similar or exactly the same. Patent laws are confiscating this "private property" from one party and give it to the other party. Now how do you justify taking private property from one private party and giving it to another private party? In the United States the justification is coded in the constitution, and it is only to enhance human knoweledge. It is not to protect the owners of private property. It does exactly the opposite by taking private property and giving the rights to another private party. And its only justification is the good of society.
Not that private ownership of "tangible property" is an absolute truth. The king might tax your tea. You might find it a bit too much. So you kill some of the king's soldiers and eventually the king's soldiers and the king's tax collectors go away. Protection of life is not that absolute either. The king's soldiers' lives are to be protected, unless the tax on tea is raised a bit more than acceptable, in which case it becomes OK to kill them ...
So king Balmer wants to tax Linux. His army of lawyers say: "the creator allows you to use his/her property in such-and-such a way, only." Blessed be the creator.
Now if King Balmer would only poit out what tea eactly is to be taxed, the Linux hackers are ready to throw it into the sea!
So why the difference in computer software? If I like your software program and decide to make my own using the same coding tools (C, Java, C++, whatever type of app we're making, whatever) that looks the exact same and runs the same, then it is illegal. Notice I didn't mention copying any code from the original, but when it comes down to it there are only so many ways something can be coded with the same language.
of property law for quite some time now. And how
it relates to the "Intellectual Property Rights
Law", since maritime law is intended to
facilitate the movement of trade on the high
seas and inland waters, etc.
Application of the "law of finds" to abandonware
would significantly improve the Intellectual
Property Rights historical record; the law of
salvage, in the example of derelict vessels
endangering shipping in shipping lanes, by
giving every sysadmin who has ever slaved over
an MS Windows/Office malware infestation, an
operable right to improve and redistribute MS
Windows Source Code, would significantly improve
MS Windows/Office security.
Seriously, how many people enjoy this current
infestation of malware and spam? This
constitutes a veritable shipwreck in the lanes
of the Net, it is this sort of situation that
salvage law and the law of finds was developed
for.
If Mike Wendy wishes to be taken seriously, he
must indicate he understands the co-relation of
trade law, law of salvage and property law. So
far he comes up short - doing a forty-foot bungi
jump on a thousand foot long bungi cord.
It doesn't mean I agree that these laws should really be applied to "intelectual property" on assumption the it is really "property". The fact is that copyrights and patent rights have been created for exactly the opposite of "protecting private preperty". "Intelectual property" can remain the exclusive property of its creator by the creator keeping it secret (it doesn't really protect from the independent prodution of an identical "property" though). Patent and copyright laws encourage creators to hand over this "property" to the public and in return give the creator a limited franchise for the use of the "property". The rationalle is of course that there is little revenue in keeping the "property" private by keeping it secret, so letting it go and getting a limited franchise that is enforcable in a court of law becomes more profitable.
The basic idea here is that the public gets something and in return provides legal protection. In closed source software and in DRM protected content the deal is broken: the public provides the legal tools to enforce the limited franchise, but the content producer doesn't jhand over the work to the public in return!
- Definition Delusions
- by pleeease December 1, 2006 9:01 AM PST
- Wendy postulates:
- Like this Reply to this comment
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(14 Comments)"IP, i.e. ideas that can affect physical processes, is property, which can be privately held."
"Intellectual property forms the basis of our industry's offerings. It can be traded, sold, contracted out, broken up bit by bit, sublet."
"All forms of IP ownership can--and should--exist together to everyone's benefit."
These statements largely disregard the fact that the fundamental material protected by IP rights is information (e.g. numbers, words, languages, etc.) , which cannot realistically be treated as market goods. They copy so easily that the supply curve looks like a right angle. Our society penalizes us for treating certain information according to its nature, but that does a very bad job of changing the nature of the information into something like a market good.
I understand the negative implications on our society that would result from removing restrictions on information, but I ask that we call a spade a spade and admit that this is all a big hack. IP is held together with duct tape, and until we reinvent ourselves as an information-age state, there will be unresolvable conflict over IP ownership. (I'm thinking it would require something as drastic as taxing information transfer vehicles in order to subsidize IP creators... but that's not quite on the conceivable horizon, so we're stuck with duct tape for now.)