Mark my words, reporters: This is going to be a big day for PR flacks calling to pitch patent stories to you. Beware. Here is how you can expect them to talk:
The IBM-and-Microsoft-funded “patent reform” folks are going to be calling every news person they know today, pitching the story that “poor Microsoft” should not have to pay $1.6 billion to “this French company” for patent infringement. A great associated story, if you are an investigative journalist, is to look up the amount of patent infringement exposure Microsoft currently has in the litigation pipeline. The amount the last time I looked is about $12 billion. Does this mean Microsoft is being unfairly targeted by what it calls “trolls”? Is it possible Microsoft is guilty of much of this infringement? Is the Pope Catholic? Is it possible that Microsoft had a culture of impunity with regard to intellectual property?
I have written on this specific story in my previous post. Now I want to address another issue. Patents ARE the original open source mechanism. “Make your trade secrets public, and we will give you a limited property right to them. Let others freely try to work around them, and society will benefit from the innovation of the community.” Thomas Jefferson
But we do need a way for inventors to make available non-commercial, educational licensed use of thier ideas, but keep the commercial rights. Creative Commons does this for music.
Like laws governing parks and real estate, one can respect property rights, and have “public easements” over land for non-commercial users.
From San Diego to Santa Monica:
Imagine a writer in San Diego that wants to make a song available free for non-commercial use–for friends, for social action, for YouTube videos and home-made music.
Then one day Brittney Spears records it in a studio in Santa Monica. The song is released on her new label, Shaved My Head Music, and the song goes platinum. Brittney, bless her soul, gets all the money if the song was put in the public domain by the songwriter in San Deigo.
Patent Commons is NOT such a solution. It is named after Creative Commons, but it is funded by IBM and others as a way to get individuals to give up property rights and undermine the system of property rights for software engineers and inventors of software.
Patent Commons is what Creative Commons would be like if it were funded by the recording industry. Creative Commons, in that case, would encourage the person in San Diego to make her song available to all, to renounce, with others–perhaps including Brittney–property rights to songs. This, by the way, would be a terrific deal for Brittney, who would have free songs to sing. By the way, as IBM becomes a consulting firm, it wants to be a free behemoth of consulting, with free technology. Concidence that IBM funds a particular type of “patent reform”? I don’t think so.
We need a “both-and” solution for patents: Patents ARE property, and that is not going to change. AND educational and non-commercial users of patented intellectual property should have easy ways to see what is available. Inventors should have easy ways to license non-commercial use of their intellectual property, without undermining their rights in the case of commercialization.
