There is a good deal of talk on blogs about what Web 2.0 is, and what Enterprise 2.0 is. I would like to suggest that the Web 2.0 community might find it valuable to consider what our values are with respect to intellectua property rights, in a situation where millions of entrepreneurs are working–and a few companies are aquiring, integrating, and serving ads over the whole.
In Web 2.0 because of the content-centric and service-centric nature of the ecosystem, the conversation often revolves around copyright. I think it is important that it also address technology inventions and patents.
I think it is also important to note that, as far as promoting innovation, patent and copyright may work in an opposite manner. When big companies steal content, their theft is obvious and remedies come fast. When big companies steal technoloy, their theft is hidden deep in the bowels of a platform or service, the theft is often invisible, and discovery, proof of infringement and remedies come slow.
On the other hand, it is easy for millions of consumers to use the web to steal content from big media companies. It is hard for millions of consumers to steal technology from large companies.
Big companies know this difference, and this is why they are investing hundreds of millions in lobbying to tighten the copyright laws, and loosen the patent laws. See note #1 at bottom.
Unfortunately, the “free culture” movement has not caught up with the distinction between content and technology, nor that between copyright and patent. Thus many folks that are “open” are being sucked by big companies seeking to weaken patent law. What the open folks don’t realise is that current patent law IS open.
I have written on this in a number of other posts, and continue to struggle to clarify what is going on, and what makes sense for the open side of the argument–which is my side, which I hope is obvious.
Here, for what its worth, is my attempt at a statement of open, community-oriented values, that expresses how I see the current US patent system as supporting these values. This list is a work in progress and any comments will be appreciated. Your thoughts are best delivered on your blog for maximum transparency, needless to say. Have at it. 
We want to promote innovation and innovators.
We respect the true inventors–whether of steam engines or of software–who take on a hard task and do it well.
We
believe that inventors own the fruits of their own labors,
whether those fruits are the result of making physical machines or making logical machines in software and hardward.
We believe in property rights. We recognize that
people have many different options in terms of their property: They
can let others use it, they can give it away, they can lease or sell
it, and they can hold on to it.
The legal system has evolved
to maintain workable markets for particular types of property that have
proven subject to theft, arguments over ownership, and so on: cars
(title, license), realestate (special courts, title, title insurance),
investment securities (Securities and Exchange Commission, insider
trading prohibitions, Sarbanes, etc.), and intellectual property
(patent, trademarke, and copyright). Each of these sorts of propery are
different in the “market failures” that have been experienced over
time, and the protections that have evolved.
The intellectual
property market needs to facilitate owners accomplishing a wide range
of market outcomes, including giving away or donating part or all of
their property. Creative Commons provides an excellent method for
donating to others the non-commercial and the commercial property
rights to a particular work. BTW this entire blog can be licensed
through Creative Commons.
If folks want to license their work
to others and get paid for it, that is fine as well. It is good for
society when creative people can quit their day jobs and labor on their
deepest contributions. One way to do this is to start a lab and
license your inventions. The central problem in running a lab is how
not to get ripped off when you disclose your inventions to prospective
buyers. The best protection system yet invented is a
govenment-certified property right. But in order to not clog up the
innovation landscape, those rights expire after a limited period.
The current US patent system has been specifically created and improved over the decades to help make a workable market for innovation.
The
biggest problem in the intellectual property markets, historically, has
been theft of inventions. There is a long history of theft by big economic bullies
from small companies and independent inventors. Big companies steal lots of ideas, and seldom get caught.
The patent
system helps combat theft by granting a publicly registered property
right–like land title. This registered right provides a basis for
preventing the theft of ideas, by helping inventors prove their
ownership in court.
The patent system recognizes the need for
open disclosure in order to promote innovation across the community of
innovators. The US patent system is historically the first open source
movement. It forces inventors to disclose of the essence of an
invention so that others can learn from that invention and try to go it
one better.
The patent system recognizes the need for
intellectual property rights to expire, in order to clear the decks for
new inventions–including those that use old ideas in new ways. Thus
the intellectual property right is unique in that it is designed to
expire. Real estate title does not expire (though it can be taken by
the state in eminent domain cases), and car titles do not expire (cars,
unfortunately, do expire). Patents expire 20 years after the
underlying property right was first claimed.
The effective
term of patent has been held the same or lessened, as US law now allows
20 years after claim, where it used to allow 17 years after the patent
issued. In many cases it take longer than three years after claim–the
difference from the old law to the new–for a patent to issue.
[Unfortunately, the copyright term has now been made almost
non-expiring, due to lobbying by Disney and others. There is no
similar effort underway in regard to patents, fortunately.]
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Note 1: Robert Cringely on how copyright and patent lobbying by big companies is pushing in opposite directions:
Copyright law is being tightened at the behest of big publishers and
especially big record and movie companies. The Digital Millennium
Copyright Act, for example, makes it a crime to defeat copy
protection of CDs and DVDs, thus helping to preserve the property
rights of these companies. At the end of some artistic productivity
chain, it is supposed to protect the rest of us, too, most notably by
encouraging the record and movie companies to make more records and
movies, which we will in turn be discouraged from copying illegally.
Patent reform works the other way. Where we are tightening
copyrights to help big companies, we are loosening patents, also to
help big companies. Certainly it isn’t to help you or me.
Do you feel helped by patent reform?
current Congressional recess, is intended to discourage frivolous
patent lawsuits, which are reportedly ruining the days of big
companies all over America, thus denying the rest of us the fruits of
those patents — new stuff. That would be fine if most of our new
stuff came from big companies, but it doesn’t. Most patents aren’t
issued to big companies, but to smaller companies and to individual
inventors. Patent reform for the most part won’t help those groups
and will, in fact, hurt them.
