The great patent thicket has been macheted

Software and business method patents are history, thanks to a decision by the the Court of Appeals to the Federal Circuit, except in those cases which happen to meet the general rule on patents, namely the machine-or-transformation test. Knock on wood. It's likely to be appealed to, but unlikely to be accepted by the Supreme Court. I feel the big mo. This is historic. Now the software economy can see the sky again.

• Appeals court deals severe blow to business method patents


• In re Bilski: Patentable Process Must Either (1) be Tied to a particular machine or (2) Transform a Particular Article


• Court Greatly Limits Software And Business Method Patents


• Jul 22, 2008 - USPTO Says No More Software Patents

Version 1.1

Update (Nov 1, 2008): It just occurred to me that any software written for a virtual machine is assuredly free now of any patentability.

Copyright - A primer on its history and its silliness

Karl Fogel presents at Google the essence of the abolitionist argument.



Fogel is my clone, my exact clone, on this topic, as presented here.

The tipping point

My sense is that the world economy will eventually be all about tipping. I've thought about this increasingly lately, and not just in the context of a world free of intellectual monopoly. Tipping accurately across the planet would foster free labor.

Today I discovered tipjoy. I look forward to finding out more about their approach and their ultimate vision on addressing the problem of micropayments. Having had great hopes in several micropayment systems from 1997 to 1999, I continue to hope, and I wish them success.

Boldrin and Levine have published THE BOOK

David Levine has announced that the long-awaited book Against Intellectual Monopoly, co-authored by Michele Boldrin and him, is now out, though it's not yet being shipped by Amazon, to which I can attest, having pre-ordered it a week ago. I read the early version last year and loved it.

Boldrin and Levine write in their blurb,

"Intellectual property" - patents and copyrights - have become controversial. We witness teenagers being sued for "pirating" music - and we observe AIDS patients in Africa dying due to lack of ability to pay for drugs that are high priced to satisfy patent holders. Are patents and copyrights essential to thriving creation and innovation - do we need them so that we all may enjoy fine music and good health? Across time and space the resounding answer is: No. So-called intellectual property is in fact an "intellectual monopoly" that hinders rather than helps the competitive free market regime that has delivered wealth and innovation to our doorsteps. This book has broad coverage of both copyrights and patents and is designed for a general audience, focusing on simple examples. The authors conclude that the only sensible policy to follow is to eliminate the patents and copyright systems as they currently exist.

Tonight after adding a Facebook "Pieces of Flair" button with the Swedish Pirate Party symbol, I happened to meander over to the US Pirate Party website, which had seen many months of apparent dormancy. I noticed no real activity until tonight. Now it looks like there've been some stirrings behind the scenes, starting with a "constitution" ratifed in Nov 2007. In Jan 2008 reportedly a 527 organization was registered. Tonight, despite periodically checking their main website for signs of life amidst the spam, was the first I became aware of this.

Sadly the positions Boldrin and Levine espouse do not seem to be welcome there, despite my efforts in 2006, making arguments on their wiki to which Levine himself contributed directly, and attending collegially the IRC meetings until the quorum flickered out. Judging from what I saw tonight on the wiki and the constitution, upon which more than a comment is due, the US Pirate Party now treats abolitionists as personae non gratae. On both patents and copyrights, the US Pirate Party 527 organization now is strictly reformist. This is odd since the Swedish Pirate Party calls for the abolition of patents. This fork did not need to happen. What to call the pirates who aren't "pirates"?

I'm looking forward to reading Boldrin and Levine's book just so that I know I'm not alone in my thoughts and imagination as a free pirate.

Update (Jul 13, 2008): Here's a quote from Boldrin and Levine's Jan 2, 2008, online edition of Against Intellectual Monopoly, showing their abolitionist stripes,

Once the lobbyist's nose is inside the tent, the entire lobby is sure to follow, and we will once again be faced with a broken patent system and absurdly long copyright terms. To secure our prosperity and freedom we must abolish intellectual monopoly from the tent entirely. (p. 300)

Update (Jul 13, 2008, 10:52 pm Central): I just noticed on the US Pirate Party wiki, which has been damaged by spam—the footnotes are now missing (here they are in a well-formatted copy of the original)—, that one prominent member, Ray Jenson, Operations Officer of the Pirate Party of the United States, wrote this response to an argument made by David Levine,

There is no evidence that copyright serves to increase new creations??? You're obviously not a student of history.

This was Jenson's full response to Levine, as far as I can tell.

Here was David K. Levine's argument,

If I may add here. The bottom line is that they do get paid. The situation with patent and copyright is different, and in both cases there are a great many ways of getting paid. The problem is that there is a seemingly compelling theory of why people won't get paid - without IPR no one needs to pay because consumers will prefer to wait until it is available for free rather than pay the creator. There are two defects in this argument, one most relevant to patent, one to copyright. In the case of patent, the argument ignores the property right that exists without IPR, the property right in the first copy. Unless someone pays for the first copy, the innovator has no reason to make known the innovation. The right to go first is extremely valuable in fact. It is easy to debate the theory on either side. But the facts are pretty clear: there is no evidence that patents increase innovation, and plentiful evidence they do not. Two particularly good sources: Lerner's study [1] of 150 years of data on patents and innovation, and the careful study of the software industry by Bessen and Hunt [2] showing that patents reduced rather than increased innovation. Basically, while patents increase the return from innovation, they increase the cost due the need to acquire IPRs in order to innovate. So from a theoretical standpoint, patents can either increase or decrease innovation, depending on which effect dominates. In software it seems it is the latter; in general, it seems that it is something of a wash. It is important here to recognize that in addition to the effect on innovation patents have an impact on the usefulness of innovation. Hence, to justify patents from an economic point of view, not only must they increase innovation, they must increase innovation substantially enough to offset the other costs. The evidence is strong that they do not.

Turning to copyright, there is again no evidence that copyright serves to increase new creations. Simply looking at the time-series of copyright changes against the number of copyrights shows this pretty clearly - see for example my work with Boldrin [3]. The best comparative study is the book by Scherer Quarternotes and Banknotes documenting the fact that copyright had little or no effect on the output of classical music. The best pro-copyright argument is one of "now things are different because the electronic reproduction is so amazingly fast and cheap." This argument also is defective. First, it is the amount you can earn relative to the cost of production that matters - the same technology that makes electronic reproduction so amazingly fast and cheap also makes the cost of production amazingly cheap. Second, it ignores the potential for selling complementary items. The obvious examples are recorded music increases the demand for the creators live performances. So there is a perfectly viable model where recorded music is given away for free as advertising for the expensive concerts where the creator makes his living. The working example of this is the open-source software music, where the software is generally not only free as in freedom, but also free as in beer, with the profit coming from the sale of consulting services. added by David K. Levine, 10 November 2006.

I'm saddened that this Pirate Party organization has now excluded those who advocate abolition of either patents or copyrights from their ranks, as I understand it.

Levine, backing up my argument that the party allow abolitionists to participate as officers and members, wrote,

I urge support for Casey on this point. I've added material below explaining why patent and copyright are an intrinsically bad idea. It is possible to have principled disagreement on this point. I would urge the point of agreement to be that things have gone too far - that is, we agree that improvements need to be made. Does the party need to take a stand also against abolition? Would it not make more sense to be agnostic on this point? There are many of us who support abolition, but we support also sensible changes in existing law. added by David K. Levine 22 November 2006

The pirate's dilemma

Phenomenal book. Best story so far—I'm halfway through—is on the evolution of the game industry.



Update (Jul 26, 2008):

Princeton professor reportedly threatened

Ed Felten, professor at Princeton University, my alma mater, reports that he has received a letter from Sequoia Voting Systems threatening to stop people like him from investigating their voting machines, threatening him with the law. Are you starting to see why I'm so concerned about the future? of universities... of our constitutional republic? Can I get more shrill? I cannot think of a more striking example of how intellectual monopoly grants may prove our downfall. Other examples can be more subtle, even though they, too, threaten our viability as a relatively successful experiment in freedom. It's hard to explain "patent thickets" and how they had to be cleared, for example, in wartime out of sheer necessity. They got in the way of progress. This one, this letter, is simple and clear. Anyone can understand it and its relationship to the core of our government. This is why I, for one, risk spouting the heresies I do.

Here is the reported letter -

Sender: Smith, Ed [address redacted]@sequoiavote.com
To: felten@cs.princeton.edu, appel@princeton.edu
Subject: Sequoia Advantage voting machines from New Jersey
Date: Fri, Mar 14, 2008 at 6:16 PM

Dear Professors Felten and Appel:

As you have likely read in the news media, certain New Jersey election officials have stated that they plan to send to you one or more Sequoia Advantage voting machines for analysis. I want to make you aware that if the County does so, it violates their established Sequoia licensing Agreement for use of the voting system. Sequoia has also retained counsel to stop any infringement of our intellectual properties, including any non-compliant analysis. We will also take appropriate steps to protect against any publication of Sequoia software, its behavior, reports regarding same or any other infringement of our intellectual property.

Very truly yours,
Edwin Smith
VP, Compliance/Quality/Certification
Sequoia Voting Systems

[contact information and boilerplate redacted]

Let's free Popper's world 3, the world of objective knowledge. We're not abolishing the constitution and ignoring the declaration; we're fulfilling them, particularly the spirit of the first amendment.

Hat tip: WendyMcElroy.com

Update (Mar 21, 2008): It just doesn't add up. My mother once warned me that someday 2 + 2 might equal 5. Has that day come? Move along.