Disqus - Latest Comments for Noel Le

Re: No Label?

Noel Le — Wed, 20 Sep 2006 23:35:13 -0000

Yes Snoflingor, although some will argue that b/c tinkering requires no capital, neither does breakthrough innovation, electronic commerce and apparently music. I'm not inclined to see too many revolutions in any of these categories, my longstanding disagreement with Tim.

The labels will never be replaced. There may be smaller, nimbler more specialized competitors, but there will always be the heavy hitters with the deep pockets to attract the big stars.

BTW Tim, check out some history on the big mgmt consulting and accounting firms. They've dealt with competition as you predict for the labels, but found out how to survive and remain big while surrounded by swarming smaller players. I'm not caught up on that reading, but would love to hear what you have say about any comparisons.

Re: Contracts, DRM Style

Noel Le — Thu, 21 Sep 2006 16:10:36 -0000

Yeah, that article's hysterical tone doesn't lend it any favors.

Read your EULA, and find out what restrictions come with your purchase of a license or a product (those are distinct by the way).

***But what kind of contract allows one party to unilaterally and retroactively change its terms? Moreover, this is really a pretty severe restriction on the use of digital files. Backups are a fundamental part of good computer use.***

Actually, many EULAs and purchase contracts contain unilateral provisions (not just in digital music or software). Knowing that would keep you from being so surprised and claiming that your "fundemental" rights are at stake.

I agree with the point of making backups, but if you didn't realize that until too late shop around more next time.

Re: Contracts, DRM Style

Noel Le — Thu, 21 Sep 2006 22:13:22 -0000

Tim, if you're that unhappy with current services, and feel like your fundemental rights are deprived, and that you're being bullied by big companies, then start your own production label. You've written enough to justify decentralized music productions with nether DRM nor the big labels, and with little capital investment that you can just Google TLF, print out the hits under "Tim Le - music - DRM", go to a VC and woala...

So Tim, what prevents you from going to a competitor. The DMCA does not prevent that. No, you won't be able to bring your content with you, but here you're merging two distinct issues: what is possible (switching to a competitor) and what is optimal (switching to a competitor with your content). By arguing the second, you want to prove the first (basically you're saying that because you can't swtich with your songs you can't switch at all).

Well, the switching costs won't be that substantial. Are you hurting. I'll float you DRM-free songs that I have.

Re: Contracts, DRM Style

Noel Le — Fri, 22 Sep 2006 15:23:43 -0000

Tim ***people often use contracts as a metaphor for DRM, and it seems to me that it's a bad metaphor. Although some contracts do allow some of their terms to be changed uniltarerally, that's not the kind of contract the people who equate DRM to contracts are appealing to. Contracts generally place obligations on both parties, but the DRM "contract" only puts obligations on the customer.***

Hmmm, it still seems, Tim, like you're criticizing a particular contract rather than the metaphor between contracts and DRM. There's no use criticizing a metaphor too closely, afterall it is a metaphor.

We still call DRM "DRM" rather than electronic contracts right.

The contract analogy is still good despite your criticism. By continued use of a product, a customer accepts unilateral changes made by a vendor. There need not be mutual obligation, only mutual assent.

Re: Another Tech Exec Badmouths DRM

Noel Le — Fri, 22 Sep 2006 20:17:46 -0000

Hmmm. I believe Apple itself benefits from DRM via its iTunes service. Is this right.

Other excerpts from the BitTorrent exec: ***the future will not be marked by (DRM). It will be marked by advertising-supported content that's clear of DRM, because the content publisher wants it to be as widely distributed as possible and consumed over as many platforms as possible.***

Wait a minute. Does content become merely a means of attracting site visitors and users in order to sell ads. It seems like lower and middle market artists might buy into this, but big bands will hold out to sell their content rather than act as ad beacons.

And doesn't the Internet already provide wide-distribution of content.

You don't switch business models, going from content based revenue to ad-based revenue, unless ITS MORE PROFITABLE TO DO SO. The worse reason to switch is to allay consumer concern about DRM.

I'm dubious about ad-based businesses b/c they seem to have a revenue ceiling. I'll leave it to market researchers to figure out the exact comparison of content v ad models, but I'm skeptical nonetheless.

If this exec is so sure about selling ads rather than content, then why doesn't he do it now. Just get some bands that will hand over their songs without DRM, distribute them and sells ads. Whats stopping it? The Studios are, right? Well, why doesn't he move ahead and use content that doesn't go through the Studios. They probably would not attract viewers to ads.

Well then, how do you get the Studios to play in with this new business plan. Again, we return to the issue of incentives.

Even if DRM, as Tim argues, is "bad" for consumers and service/hardware makers, if the Studios want it, then its going to stick around. You have to give the Studios incentive to join the new plan. You can't just tell them it would be better for everyone if they set aside their fears, and hand over the goodies w/o that mechanism (DRM) which gives them at least some assurance against rampant piracy.

Re: Another Tech Exec Badmouths DRM

Noel Le — Sat, 23 Sep 2006 14:23:11 -0000

The margins may be better for BitTorrent with ad rather than content sales. But will viewing more ads be better for consumers.

***advertising-supported content will win out over (DRM) in the long run for movie and***

Looking over his interview again, the BitTorrent exec actually thinks DRM free content supported by ads will be more profitable than DRMed-content sales. Funny, is there anything to suggest that (market numbers, viewers increasing to see ads, etc)

Re: Spontaneous Order Is Counter-Intuitive

Noel Le — Mon, 25 Sep 2006 00:29:45 -0000

Tim, again, there is a technology industry right in front of us. Didn't you work in it.

Based on your analogies, why is FOSS (which has been around longer than most proprietary technologies) not leading in every category. Any why do you continue to push for bending US policy to accommodate it. Darwin and Hayek will not help unless FOSS does something for itself in the market (which I'm supportive of, but remain skeptical). The limitations to FOSS, as far as I see, are principles on which it distinqishes itself from propetiary industry. FOSS should learn to be more practical now that its beyond the phase of proof of concept.

Whats the most important entity in technological innovation. The market, right? The market: meaning consumers, those who invest, buy and decide the societal value of technologies. So, whats the need for these silly metaphors from Darwin, Hayek, etc, when there is a market right in front of us- unless you need to explain away sub-par market performance with philosophical justifications. Well, Darwin and Hayek will not help FOSS build market share. But still, this discussion is interesting.

Jed, population thinking is different from the "market." Thats not an analogy I see you getting at, but one I believe Tim hinted to. A lot of misconception arises when the concepts of population thinking and the market are compared. The market resides on incentives and competition. Population thinking, well, its the driving force behind spam, patent trolls and other societal anomolies. Some claim it is the virtue of things like Wikipedia and FOSS projects, but- it probably does not apply to FOSS development. Wikipedia perhaps..

The concept of Darwin's evolution aside (I won't delve into it, but note that it has no predictive value), there is conflation of two distinct principles when Darwinism is compared to market economics. Darwinist theory predicts that the best technologies naturally arise and lead follow-on and peripheral innovations. Those who apply Darwinist theory *usually* equate the "strong" with the "best technologies." In reality, the best technologies per se are not always those that win. It's the technologies that are most adaptive to consumer and market demand that win.

Re: Hayek and the Freedom to Tinker

Noel Le — Mon, 25 Sep 2006 00:58:08 -0000

Freedom to tinker is one thing, but to mold the law, to over-ride productive industry, to consider your "tinkering rights" intruded on when you can't do what you feel like w/ someone's product- isn't that kind of a stretch from Hayek. I'll follow Tim's reading for now, but questions remain...

If tinkerers are that good at tinkering, why don't they build their own iPod and XBox. Apple and MSFT do take consumer feedback, but rather than wait for them to accomodate tinkering, why not build your own product and compete. Why is there no FOSS equivalent of the iPod and XBox to tinker with.

Re: Hayek and the Freedom to Tinker

Noel Le — Mon, 25 Sep 2006 14:00:22 -0000

Tim, some guy in his basement can launch a FOSS project to build something similar to the XBox, so that he and his pals can tinker. (hmmm, I thought one game console actually ran on Linux). In any case, whats the excitement with tinkering with the XBox, why not some defunct console that nobody has billions invested in.

Mike, what do you think of developer kits and the XBox project to allow uers to build their own games.

V, when a company sells or licenses you something, you are purchasing/ lilcensing the product/service, as well as restrictions on it.

Lewis, although the DMCA and other IP doctrines may be at issue here, I still see tinkering as something negotiated between consumers and firms(all private entities).

Steve, I believe you're talking about fair use in copyrights, in patents there is a semi-analogies doctrine of improvements. I don't see how these concepts are inadequate for the purposes you cite.

Re: Hayek and the Freedom to Tinker

Noel Le — Mon, 25 Sep 2006 22:47:48 -0000

Mike, tell me why current fair use exemptions don't suffice. How would you propose modifying them. Certainly, you don't mean that Apple and MSFT should be required to make their hardware and software more accessible. You're arguing that there should be less legal restrictions to tinkering right.

And whats with the new philosophy lingo?

Lewis, when a producer sells or licenses to you a product, then they can set limitations on your "tinkering." Of course, there is some limit to what they can restrict, as governed by IP policies. I see this as a necessity. Take away the right of producers to set such conditions, as lets see how many of them continue to produce.

I'm not knocking tinkering. Well, OK I am. I don't think it can compare to capital intensive R&D; in some technology spaces. In others, tinkering innovates just as well as large scale R&D.; I think we already see where tinkering v big R&D; do their best in the way that FOSS and proprietary technologies are divided in terms of market penetration.

I personally have no problem with anybody tinkering. Heck, many good ideas come from using something in a way it was not originally intended. However, I would not risk productive industry for this, at least not in something like games where it is proven that capital investment is essential for innovation.

Steve, several scholars have given your argument w/r/t patents and copyrights; positing that taking away broad ex post (post production) control over products by owners will invite more competition and innovation, as incumbants have to re-innovate rather than rest on their laurals. There is no consensus on this issue, but I will tell you that given the time it takes to create a mass market product, and the time in which that product will be on the market before newer and better technologies overtake it, that some period of ex post control by the IP owner becomes even more important (aka the software industry).

The issue then becomes how to balance this with the ability of tinkerers after that product has gone off market but is still protected under patents and copyrights.

Perhaps fair use should take into account the fact that a technology is currently commercialized or if its already been put on the shelf?

Re: Hayek and the Freedom to Tinker

Noel Le — Tue, 26 Sep 2006 00:16:05 -0000

***you seem to want to institute some kind of very French-style 'industrial policy' (trÃ?ÃÂ¨s dirigiste, Noel!) to justify the over-riding of freedoms to favor certain industries, or certain kinds of outcomes which Noel Le has ordained to be 'progressive'.***

Mr. E, I said productive industries, not progressive.

And, I didn't ordain anything as laudable or worthy of shaping policy. The market did by rewarding innovative companies.

***I think again Noel that you are approaching this with a whole set of preconceptions that cloud your thinking.***

No I'm not. I'm approaching things after looking at the market, thats preferable to flipping around terms like revolution and creative destruction like they're toys. Here I refer you to a passage by Professor Merges I recently commented on. Does it sound familiar, eh, Mr. E?

***...stories told by strong public domain advocates feature romantic narratives of resistance and rebellion: the brave and lonely battle of the "little guy" against the flat, metallic, and vapid forces of the corporate media machine. Because this narrative fits the contours of the first amendment literature, constitutional values of self-expression are often invoked ....*** Robert Merges

Man, if you listen to a FOSS discussion you'll hear that the technology industries are hurting due to lag of innovation, rises in transactional costs pushing out small firms and large companies depriving citizens of fundemental rights. It like FOSS supporters think they are saving the industry and fundemental rights!!!

Re: Hayek and the Freedom to Tinker

Noel Le — Tue, 26 Sep 2006 01:05:47 -0000

***FOSS may never develop an iPod. On the other hand, a for-profit large scale industrial enterprise would never develop wikipedia, or the linux kernel. (Or Xplanet or aterm)***

Mr. E, you hit upon an excellent point. Here's a pat on the back.

Different incentives models produce different kinds of innovations, so the question is how do you optimize different kinds of innovation through regulatory policy.

What Steve, Lewis, V and MikeT speak of above isn't just tinkering for its own good, but innovation based on cumulative and incremental improvements. often through decentralized inputs. I have to disagree with them that these innovation models map to gaming platforms, but they certainly apply elsewhere. Let me look into this a bit more...

Re: Republican Moderates: Not So Great After All

Noel Le — Tue, 26 Sep 2006 15:19:22 -0000

Man, MikeT, you sure are on a philosophy rampage. For too long, you've denied yourself the pleasures of philosophical inquiry and the liberal arts after a gazillion hours of dry programming:)

Re: Open Source Voting is No Panacea

Noel Le — Wed, 27 Sep 2006 23:56:26 -0000

***computerized voting was dangerous because it makes the voting process more CENTRALIZED and less transparent.***

***Open source voting software doesn't do a whole lot to address the CENTRALIZATION issue.***

Do you consider (de)centralization a goal in itself, whether in development or any other economic activity. Just wondering.

I'm sure FOSS can create good voting software, but I'd judge it by the fact that it works better rather than that the development was "decentralized."

Re: Hayek and the Freedom to Tinker

Noel Le — Thu, 28 Sep 2006 18:39:47 -0000

Mr. E, your statement totally changed the paradigms with which I understand innovation. I see the world differently now. I'm still coming to grips with how to concilliate the industry with your insights. 'will reply shortly.

Re: The Technology Liberation Front » Archive » Remember $80 Movies?

Noel Le — Fri, 29 Sep 2006 10:54:54 -0000

***The music industry seems to think that 99 cents is unreasonably low. But I think the opposite is probably closer to the truth; demand for music, like the demand for movies, is likely to be highly elastic. If the music industry cut prices to 49 cents a song, a lot of existing customers would buy twice as many songs.***

Hmmm. The issue of scale is relevant here. Dropping music downloads from $.99 to $.49 would not necessarily increase sales in the same way that dropping DVD prices from $75 to $15 did. Unless of course, Tim Lee is right, that the technology industries and consumers are hurtin. In this case, I'd say they're really really hurtin if $.50 per music download is reason to buy more songs.

Re: The Technology Liberation Front » Archive » Remember $80 Movies?

Noel Le — Fri, 29 Sep 2006 13:44:30 -0000

Just curious. Of the services that currently offer $.49 songs, how are revenues compared to $.99 rivals. Are the music selections comparable?

Re: Listen to the Stopped Clock

Noel Le — Fri, 29 Sep 2006 16:05:31 -0000

***Chris Castle is a technically clueless lawyer***

He would probably say the same thing about you regarding policy and business.

How many times have you tried to justify DRM free business models!!! To say there is stretched effort there is an understatement.

I hand it to you though: perhaps nobody has as many analogies for FOSS as you do Tim. But again, you understand FOSS as purely an analogy.

Also, nobody can use so many definitions of the word monopoly in one paragraph like you can.

***it's occurred to Castle that it's not a coincidence that MP3 is more widely deployed than FairPlay and Windows Media***

Wonderful, now check the revenues of MP3 v other music formats with the leading online music services.

Re: Listen to the Stopped Clock

Noel Le — Sat, 30 Sep 2006 13:02:31 -0000

Tim wrote: Chris: Humor is fine, but the majority of your blog posts involve either mocking Lessig, insulting him, misrepresenting his arguments, or impugning his motives.***

Yes, I find that Chris provides some relaxing reading:)

Tim, what Chris writes is important, given the aimless and mindless allegiance that Lessig seeks from his followers.

Re: Listen to the Stopped Clock

Noel Le — Sat, 30 Sep 2006 14:13:27 -0000

Doug, how would you propose rewriting or scaling back sections of the DMCA.

Re: Listen to the Stopped Clock

Noel Le — Sat, 30 Sep 2006 15:25:10 -0000

It blows me away how completely unaware of the industry some folks are. Hence, statements like this: (Tim) The whole point of DRMed formats is to limit interoperability with third party devices.***

When you think of policy in terms of absolute goods and evils, then yes, you can arrive at Tim's conclusions.

But technology, at least in the digital music business, is a facillitator, not an end in itself. Interoperability is not an end in itself. Decentralization is a laughable end in itself (especially when the analysis has absolute no policy basis:)

With all this hoopla over absolute values, what I gather most is that folks won't mind sub-par entertainment in the case that their policy wishes come true, and the only producers with incentive to undertake creative and productive work are those that currently HAVE TO GIVE THEIR STUFF AWAY FOR FREE b/c nobody will buy it.

Re: Listen to the Stopped Clock

Noel Le — Sun, 01 Oct 2006 02:42:46 -0000

Upon close inspection, Professor Lessig does not really make substantive arguments. He makes claims to rile up the troops.

I've stated time and time again the sheer absurdity of his history of innovation work. With patent policy, he's even worse. His views on copyright at least allowed Professor Lessig to jump ship from "FOSS is more innovative" to "FOSS preserves culture;" when FOSS proved a tag along phenomenon.

Lets see: my golf clubs, my car, my house, my culture... :)

Note that Professor Lessig is almost entirely ignored in industrialization and innovation policy literature. Nobody really bothers substantively critiquing his work.

Now I say this but I recognize the value Professor Lessig provides: societal commentary. Everyone I've talked to who has seen Professor Lessig present, or studied under him, says that he is sincere and adamant about his beliefs. Nothing wrong with that: it makes him commendable. We benefit, to some extent, because Professor Lessig provides an odd balance. However, it would be a mistake to consider Professor Lessig as a serious innovation scholar rather than a necessary evil.

To MikeT, perhaps you've only read some of my writings, but I'm a very big proponent of reverse engineering, legitimate fair use and maintaining "tailored" IP policies that serve their utilitarian goals. Tell me again though- why are current policies inadequate specifically for you.

I agree with MikeT that it is techies who innovate, not policy makers. Policy is secondary to the innovation that occurs in technological spaces, but as long as there is a field of policy, those who shape it should approach issues with experience rather than with the (unconscious) purpose of deriding its importance and seriousness out of simple amateurishness.

Re: The Technology Liberation Front » Archive » Texas-Size Sophistry

Noel Le — Sun, 01 Oct 2006 20:41:04 -0000

Man, if you think Tim raises economic questions, you're right. However, his discussion of economic issues is anything other than serious.

The *alternative* economic theories I propose would be the ones in force in front of us, that sustain American innovation and industry.

As Tim would have it, tinkering morality would supplant our economic strength, and I read his post under that general lietmotif. Thats where I gather that applying Tim's piracy justification and you would have a universal justification for theft.

Where on earth does this reading of Friedman come from. Tim:)

Where are my illogical fallacies Steve. I'll discuss any points if you show me eactly where you and I disagree.

Re: The Technology Liberation Front » Archive » Texas-Size Sophistry

Noel Le — Sun, 01 Oct 2006 23:45:01 -0000

***So far, I have not heard any such argument based on rationality.***

Steve, the digital industry is a funny thing. Do you know why? It does not present immediate explanations of why its generative, wealth creating, or even why its intersting. In short, the digital economy is something to be studied, but studied in the sense that important insights are ones that help produce creative and productive activity; that facillitate, per Professor Dam, innovation over time.

It would be a logical fallacy to derive truths about the industry without considering all inputs and motivations involved. Nobody really knows all that these encompass. Thus, the error w/ FOSS proponents is that they assume they know how innovation works (man, if you've ever worked in the industry, or spent time in serious policy circles, you would appreciate how funny the notion of knowing how innovation works is), without at least considering the primary factors in the digital economy: the incentives of innovators, and the choices of consumers. They would essentially lead capital risking entities into the ground and consumers with half finished products- all for the sake of some tinkerers who feel that others always owe them something to tinker with.

I'm not saying your argument falls to this trap steve, but explaining to you how I approach the issuess given what I've seen here.

An intersting point you make about the irrelevance of "who receives the money." Tell me how your little scenario differs from justification for a black market.

Yet your point that there needs to be demonstration of a digital entertainment industry contributing to economic welfare through legitimate consumption is intersting. Look at the earnings reports of Hollywood!! I'll skip the whole debate about perfect vs. imperfect IP. However, to have the exception subsume the rule, to over-generalize a theoretical lesson beyond its due and make this an assertive policy view is to overplay your hand.

*** An effective response would have been one demonstrating that the content industry was somehow providing enhanced value to the overall economy because of a legitimate revenue stream... buying the pirated DVD that person is still putting money into the overall economy. The pirate, after all, for his business to flourish has to buy blank DVDs... the content industry may be hurt, but the overall economy won't be.***

For one, if you accept that the digital entertainment industry contributes to economic growth at all, then you have to accept that to what extent it does, it relies on legitimate consumption and business transactions. If you are denying that Hollywood contriutes to the economy, then fine. But this does not mean that we would be better off by legitimzing a black market. No, the overall economy won't be handicapped by Hollywood making less money, but one has to ask where the loss in profits go. The contributions of the digital industries to commercial activity is greater than sales of peripherals purchased to facillitate black market and illegal theft I grant you that.

*** In terms of the overall economy, it is irrelevant who receives the money. The economy, in the abstract, doesn't care who is right or who is wrong.***

It is relevant who receives the money, when we know who risked his investments, and that future ventures will be unlikely if we do not ensure economic returns. The economy will continue even if Hollywood is less profitable, but look at what you are trading in. Profitable business for tinkerers.

Yes, its surprising, even in this day and age, to forget about the whole incentive basis of capitalism.

Re: The Technology Liberation Front » Archive » Texas-Size Sophistry

Noel Le — Mon, 02 Oct 2006 09:52:57 -0000

The point is that the Show Me Institute is not involved in technology policy and has no expertise in that area. I don't see its years of being around as important,

***I notice you had time to comment on this post twice, but couldn't spare so much as a sentence actually addressing the substance of my criticism.***

I can't believe I'm hearing this Tim. Do you really mean it. One could easily critique the methodology of your posts, which are quasi-substantive and are aimed at riling up the blind and faithful.

I read you enough that I'm not going to give a critique thats not immediately called for, but don't leave yourself open...

Re: Civility and Economic Debate

Noel Le — Mon, 02 Oct 2006 15:32:22 -0000

Figure 2. Its Adobe pg 11, actual study pg 8.

The calculation in question, based on our discussion, is "lost output." This is an aggregate among all concerned industries, only some of which are based in Hollywood.

I see now your point, the same as Steve's earlier, that outside of Hollywood, it does not matter where money goes as long as consumers spend; pirates would still buy hardware and other peripherals whether or not they buy content legally.

But I would caution that we need to differentiate between "growth" and "activity." Your approach is to downplay economic activity, and say that the only considerable impact of piracy should be its effect on growth, or overall economic status. I can tell you that fiew things have clear the cut cause-effect on our overall economy you imply needs to be found in piracy.

A countering view to your arugment would be to highlight the detrimental effects on long-term sustainment if general economic activity is not legitimate.

The importance in economic activity and capital flow is that they are, of course, necessary but not sufficient for industrial growth. This seems to be your disagreement with IPI.

Re: Civility and Economic Debate

Noel Le — Tue, 03 Oct 2006 02:55:20 -0000

Its late, excuse my typos as I'm caught up with some stuff, so just a few brief comments. If you want to continue this discussion, email me or start a new thread somewhere as the topics are getting too broad.

I will stand with my point that the FSF and EFF are fanatical groups though. I hold this generally of groups that seek "truths" rather than practical or even insightful goals.

*** In a competitive market their price gets pushed towards zero, and that frees them up to be used as free promotions. That's a good thing. It's called economic efficiency...***

Hmmm. This could be true, unless an inventor or creator continues commercializing with capital investment.

I would be careful about stretching the term competitive market. Different industries naturally have different kinds of competitive markets, determined by cost and risk allocation (mostly ration of innovation v ease of imitation).

Some would argue that "perfect competition" applies to the software industry. You have your programmers do their thing, save the work in digital format, then sell to consumers: the only remaining costs pertain to distribution, but with the Internet that's pretty much zero.

But what about the cost of production. I'll argue that with some software technologies, FOSS is a good solution because its shown that it can create software with little capital and decentralized informal inputs. The lesson probably also applies to many digital business methods and Internet infrastructure technologies as well.

But with goods like consumer technologies, that hasn't occurred. In that space, capital intensive companies are still needed to innovate. And because they expend risk and money to do so, when the competitive market pushes their prices to marginal costs, it does not approach zero.

***How is a government mandated monopoly on a product with zero marginal cost the free market?!? ***

Hmmm. Personally I subscribe to the Schumpeter model of innovation, with a twist of the tailored incentive theory of IP. That means IPRs are not a govt mandated monopoly, but a mechanism to achieving one through market dominance. These monopolies are granted to the extent they facilitate innovating activity, ensuring enough economic returns to keep investors ponying up the cash, and innovators planning careers in innovating.

In the current technology industries, "monopoly" is a funny word. For one, many commentators have said that companies don't compete in digital markets, they compete for those markets. If you're totally against the concept of monopolies, you're denying an inherent structural trait of the industry.

You should look at an article published almost 10 years ago, by Harvard Business Review (I can forward the article later, can't recall it off-hand) that the competition landscape in the technology industries will reward parties that gain proprietary control over platforms in industries with fast moving peripheral innovations. The genius of the article is that it basically used lessons in the early computer industry to project how the future of the industry would evolve.

***You said in the previous comment: "Its merely a way to stake claim on someone else's work." From that, I read that you believed that someone was being ripped off. I'm sorry if I misread that, but feel free to explain it again.***

To clarify, I meant that "tinkers" often use natural rights arguments to justify their tinkering rights with others' technologies. I haven no inherent disagreement with this, but wonder why fair use and other existing IP doctrines are not sufficient as these groups often call for the end to DRM or software patents in arguing their claims. These sound like radical views, reaching far beyond what seems necessary.

The interesting thing, now that I think about it, is that "tinkerers" argue a natural rights view for their tinkering rights. This contrasts somewhat with American IP policy, which is shaped foremost by utilitarian considerations. Copyright have an inherent natural rights aspect, thus tinkers can argue down that road and mingle with other natural rights copyright gurus, but they have to recognize that their arguments have to balance against copyright's utilitarian considerations. You can't refute utilitarian arguments with natural rights perspectives, you can only seek balance. You don't beat quantitative arguments with qualitative ones (and visa versa) do you? Moving over to patents, tinkers make the fallacious move of pitting their natural rights views against utilitarian patent policies. The better course, in my view, is for tinkerers to adopt utilitarian arguments (or at lest more effective ones).

***A big, big difference, of course, being that with infringement, nothing has been lost. But, you've studied economics, right? You do know the difference between rivalrous and non-rivalrous goods? ***

I would ask whether the IP holder is involved in the market in which the "infringement" takes place. But I will disagree with your suggestion that "nothing has been lost." If the IP holder is involved in the market, potential revenue, arising from a production/invention in which capital was invested, has been lost.

You sure carry the rivalrous/non-rivalrous lesson a far way. But I would caution that "production" costs in information do no consist entirely of actual distribution mediums, they entail to large extent R&D;, time to innovate, the ration of imitation v the cost of innovation, etc. Considering these variables, prices fall but stop well before reaching zero.

***If someone sells ads on content and is able to profit it from it where the original owner was not able to do so, isn't that good for the economy?***

So, you're saying that its OK to use someone else's content to lure ad sales. In other words, give someone else's property away to sell your own. Why not use your own content, or content that really is free, to sell ads. The answer is that someone else's content is valuable in attracting consumers, and thus is valuable to the owner.

***The more you look at the history of innovation, the more you realize that almost every "big" innovation or inventor was simply the next in an incremental line. There are very, very few big inventions.***

Well, I don't think we necessarily disagree here. Innovations do not arise in a vacuum. Complementary new innovations are required, as is the maturity of existing innovations. I would not say that innovation occurs small step by small step though: how do you account for R&D; agendas that plan to develop a new invention over a span of years.

As for groundbreaking pioneering innovations, the Internet is one: funded by the DARPA arm of the DoD.

***The famous inventors of the past were often just mere innovators, but became famous as inventors for their ability to bring their products to market more successfully than those before them. They often made the incremental innovation that turned a small market into a big market -- and that's worthwhile to celebrate.***

YES, the commercialization aspect is more central to innovation than most folks realize.

It is worthwhile to celebrate smart techies who turn out to be good businessmen, but again I would caution that your economic lesson may only apply to some industries.

I don't want to talk about incremental and cumulative innovation in the abstract but I will say that the USPTO and courts should consider the specific market, not just industry or technology, of an invention when granting or enforcing IP rights.

Re: Interesting Peer Production Paper

Noel Le — Thu, 05 Oct 2006 11:12:29 -0000

***To those of you skeptical of all things peer as a broad attack on markets and capitalism, I quote the following: "Despite significant differences, P2P and the capitalist market are highly interconnected.***

Hmmm. Its not the case that peer production is inherently opposed to markets or capitalism. In fact, I will argue that vertically integrated, and traditional firms rely on their own forms of peer production.

A lot of sentiment about peer production (and P2Ps) arises from historical developments, which tended to be on the legal fringes. Other than that, I don't think anyone is opposed to the things you mention per se.

Re: The Amorality of Google Searches

Noel Le — Thu, 05 Oct 2006 11:16:07 -0000

Certainly, Google's search algorithm is not set in stone. The company probably has in mind conditions in which it sees need to modify that algorithm. I"m curious then Tim, when do you see this properly occuring, if not for the reason that Carr argues.

Re: The Amorality of Google Searches

Noel Le — Thu, 05 Oct 2006 12:54:36 -0000

Thats interesting. Google may hear something like Carr's suggestion about human oversight, and then seek to automate it into the algorithm.

Re: Harper on Watchlists

Noel Le — Fri, 06 Oct 2006 20:47:49 -0000

Where is your other blog Jim?

Re: The Technology Liberation Front » Archive » Property Rights Need Clear Boundaries

Noel Le — Sun, 08 Oct 2006 18:50:31 -0000

I agree with Mike.

I would caution that the difficulty or complexity of applying legal standards is different from lack of "bright lines." Note that many legal disputes in IP are decided by balancing/weighing elements or prongs (the fair use and abstraction tests in copyright are good examples). To replace these tests with "bright lines" sounds like a proposition for deciding IP disputes purely by prima facie observations, or worse, advocacy for replacing our common law system for the civil code.

Re: Creative Destruction

Noel Le — Sun, 08 Oct 2006 19:06:31 -0000

Yeah, what on earth were Tower execs thinking. Perhaps they thought of the Internet and ecommerce as passing fads.

Re: The Technology Liberation Front » Archive » Property Rights Need Clear Boundaries

Noel Le — Mon, 09 Oct 2006 14:30:50 -0000

Hmmm. Lets see here. How long do you wear any article of clothing. It varies a bit, but I probably turn-over my clothes more often than tennis rackets, golf clubs and editions of software programs, etc. Hence, the life-span of an article of clothing is relatively short.

If you're going to buy something only to wear it for a year or so, I suggest Tasso Elba's fall line of casual suits. Maybe mix-match that with Hilfiger's new dress shirts. Polo and Perry Ellis seem intent on waiting out this fashion cycle...

Re: Microsoft’s New Security Problem: McAfee

Noel Le — Mon, 09 Oct 2006 16:37:09 -0000

Luis, I'm also not following MSFT's security woes, but I don't believe the security features of Vista will prevent users from downloading and running third party security programs from McAfee, Norton, etc. Thus, there should not be a "lock out" of competition.

Re: Civil Disobedience in France

Noel Le — Mon, 09 Oct 2006 16:48:45 -0000

***Martinez said. "I support artists with legally purchased works, but I do not want to be forced to use a particular device to play them."***

The kid sounds like a nutcase. Nobody is forcing him to do anything. He voluntarily bought songs whose use privileges he knew would be limited, and now he's complaining. If he's that big on use freedoms, he should just switch music services.

Re: Microsoft’s New Security Problem: McAfee

Noel Le — Mon, 09 Oct 2006 18:53:13 -0000

Claude, you raise a good point. MSFT has been threatened for security flaw liability and criticized for years. I always wondered why BillG and company were getting the heat from consumers, with McAfee and Norton left on the sidelines. Certainly any hacker attacking an MSFT product would have in mind how to bypass McAfee and Norton.

Re: Civil Disobedience in France

Noel Le — Mon, 09 Oct 2006 22:07:37 -0000

Folks can buy DRM free songs, and use other players not supplied by Apple and its partners. The language of substitutions is so central to regulatory policy I'm surprised its lessons are not found on TLF.

The anti-DRM campaign really reminds me of "rights inflation," those who feel they ahve a right to tinker with another's work, who feel like they're losing their culture or freedom because innovators don't do what they want- and all of this fits under some self-important delusion of a revolution or movement. And through all of this, I hear little if no appreciation for companies that bring the products/services in question to market.

I'd consider more seriously discourse on unilateral changes to EULAs, or reverse engineering policy rather these conversations that tacitly begin with "what about me."

Re: A Billion Bucks for YouTube?

Noel Le — Tue, 10 Oct 2006 22:23:58 -0000

The necessity for IP rights commensurates with the cost/time to innovate, the risk of misappropriation, and several parallel factors. These characteristics of innovation inform considerations of where we need broad vs narrow patents, higher vs lower obviousness standards, etc. Some argue, such as I do, that the IP paradigm scales not only to industries, but to technological spaces within industries.

Thus to say that IP is important to small companies doing business with larger ones makes sense for industries with risky and expensive R&D;, especially where development and commercialization/manufacturing can be modularized. In such cases, small firms need IP to license to gain access to the capabilities and resources of larger companies.

The economic structure of capital and risk intensive innovation is what Jim Delong writes about in his summer article. Such lessons apply less to ecommerce companies that leverage distributional and informal input mechanisms with almost zero development costs, and little inbound licensing.

It would not be quite right to generalize YouTube as an economic lesson for the non-importance of IP as much as an example of a company on one side of the spectrum where IP is less valuable. Thus painting YouTube as a universal form of innovation without IP is not right or wrong, but incomplete.

Another reason not to prop up YouTube too much is that it has mediocre profit if any, and only recently signed deals with content owners. Until now, YouTube has been an invention, with acquisition by Google YouTube can become an innovation with great market or technological impact. It's the strategic future market that drove Google's paying price past $1B. The majority of the price tag, however, probably comes from YouTube's user base and name recognition. We should also consider what Google knows based on talks with YouTube that the rest of us do not- perhaps some resolution of copyright issues.

Re: Innovation is a Process, not a Destination

Noel Le — Wed, 11 Oct 2006 01:40:40 -0000

Of course you try to pick apart an argument by applying it as a universal theory to a situation that differs from its economic model, and this even after my lesson to you that theories of innovation are industry, and probably, technology specific.

***it's often very difficult to replicate innovation from the top down. The software development process at big companies tends to get slowed down by bureaucracy, and as a result it's slow and expensive.***

You argue that MS and everyone else could have copied Google's maps, but that they spent tons trying to be original, and that somehow this is a general reflection on small vs big firms in their innovating ability. But first you should ask how much of a priority are maps to the varous companies cited. What do they spell for bottom line profits. If a product is really important to a company, its going to focus more on it, and make it that development more efficient, right? With MS, they're probably working on more than just a map, also peripheral applications to go along with. It might be easier to study Google's technology, but in terms of maintaining interop between their products, MS would build a map inside the company.

***even a small company with no IP at all will have substantial bargaining power over a large company facing a decision about whether to build or buy a particular bit of technology.***

You take a leap here. Even if big firms are hierarchical, bureaucratic, slow and waste money, do they lose any real advantage to smaller firms. But I'll roll along. Basically, IP becomes moot to your argument though. Take IP out of the equation, and your view doesn't really change. What you are saying is simply that smaller firms will be nimbler.

I believe Masneck's argument is that innovation occurs as BOTH destinations and processes. With the Internet, there's a lot of focus on how it improves distribution and collaboration, so there we're talking about process innovation. Personally, I consider FOSS an innovative process.

Re: Civil Disobedience in France

Noel Le — Wed, 11 Oct 2006 04:00:46 -0000

Charles, if you buy a song without DRM, then nobody prevents you from relaying it between various devices.

My point is that if you buy a song with DRM, its you, not the government or the firm, preventing you from playing it on devices of your choice.

You raise some good points though...

***The problem with anti-drm-circumvention laws is that if an innovator comes up with, say, an mp3 player that's better... a person who has legally purchased a certain piece of music would be commiting a crime by using a different device. Such a law is then effectively a useless brake to innovation.***

Putting songs onto the new MP3 player would not be a per se crime (and you know that:).

Also, if the new MP3 makers are truly innovative, they would have found out how to make their player interoperable with existing digital music DRM schemes, so that users CAN SWITCH to their player. And based on what I see on TLF, there is a market for such a new product.

Re: Innovation is a Process, not a Destination

Noel Le — Wed, 11 Oct 2006 07:20:07 -0000

Its just Tim's effort to say that smaller firms are inherently more innovative than larger companies because they can possibily leverage the innovating process more efficiently. I have no big disagreement with this as I've argued elsewhere the releative lack of concentration in the software industry as a sign that IP policies are fostering a healthy digital economy.

Yet, Tim's strategy in this post is that by including Masneck's view of innovation, he maintains our attention to this proposed inherent efficiency of small firms and diverts us from thinking too much about actual products.

Of course, what happens when you only see innovation in the process of innovation, where you assign small firms to have inherent advantage: small firms are thereby more innovative.

In other words, Tim used Masneck to draw a big circle around himself.

Re: Innovation is a Process, not a Destination

Noel Le — Wed, 11 Oct 2006 11:06:15 -0000

Hmmm. Tim, I would not necessarily look for innovations easily replicated. How about balancing ease of copying with strategic or commercial value. Firms have more incentive to go after (misappropriate) innovations with all of these characteristics right.

Re: Innovation is a Process, not a Destination

Noel Le — Wed, 11 Oct 2006 11:39:04 -0000

Also, you got my point that innovation applies to both processes and end products right. Thats an economic fact. You can say that innovation in a certain space deals more with one form or the other, and that they are not mutually exclusive, but to say there is only one kind of innovation is not tenable.

Of the things you write about Tim (peer production, decentralized development), those would be process innovations.

Product innovations can include Blackberries, extra flight golf balls, desktop apps, etc.

Re: Innovation is a Process, not a Destination

Noel Le — Wed, 11 Oct 2006 12:16:35 -0000

What Blackberry does is called incremental innovation Tim. You can say the process of incremental innovaiton, which ensures constant interop between hardware/software, increased stability and new revenue to firms, is itself an innovation. But don't you think the Blackberry is an innovation. There are few things set in stone in the digital economy, and I'm not talking about a particular model of Blackberry. But the concept encompassing functionality, form factor, etc. Thats a product innovation.

Re: Backwards Reasoning on Copyright Law

Noel Le — Wed, 11 Oct 2006 15:23:17 -0000

A court will not blindly apply a legal copyright test in a way that contradicts copyright's underlying principles, or quash innovation-competiton when they clearly are at stake.

I wouldn't go so far as to give Google a carte blanche though, a judge can still side against it if he/she thinks Google has not sought alternatives or made efforts towards legal compliance.

Hey Tim, how about a post on the top 5 most arrogant litigants in the tech sector...

Re: Kiko and Building versus Buying

Noel Le — Wed, 11 Oct 2006 18:30:40 -0000

Tim, this must be the third time in less than 24 hours that you've tried to play down the importance of IP by focusing on an ecommerce company whose economic structure is low risk and low cost- which already suggest that IP would not be important to it.

Your lessons are a bit off mark though. Perhaps I'm skeptical, but its never good to read too much into things.

Your first lesson pretty much just says that the company didn't create its own program because it wasn't an immediate busienss priority.

Your second lesson is easily explained. For any ecommerce company with low R&D; costs, it should be expected that this company's IP assets are not a large part of its worth.

Your third lesson is also simple. So this company is not worth very much. That makes it easy to buy...:)

Re: Tower Records R.I.P.

Noel Le — Wed, 11 Oct 2006 18:32:08 -0000

Hehe So why did Tower go down again. Because of online music services that rely on DRM? Ah, yes, creative destruction.

Re: Civil Disobedience in France

Noel Le — Wed, 11 Oct 2006 18:39:51 -0000

I'll reply to this later or tomorrow Charles. But take a look at this short piece, which should lay out my views of the DMCA and reverse engineering (http://weblog.ipcentral.info/archives/2006/10/j...).

I'm not opposed to your views, but I think there is more flexibility in the DMCA that you do.

Re: Firm, Market, and Social Organization

Noel Le — Mon, 16 Oct 2006 14:48:37 -0000

Hmmm. Off the top of my head, I recall a paper by Professor Robert Merges, where he talks about the ubiquity of today's digital culture (technology products, media, Internet services, etc). One of his points is that Americans feel so surrounded by this digital reality that we overhype its actual effect on things like liberty, freedom and Constitutional rights. We act like we can't get away from it. Professor Merges argues, and I agree, that its very simple to not use or look for alternatives to digital goods that we feel impinge on those things we value. Thus, what deprives us of freedom and liberty is ourselves when we choose not to pursue available options.

Re: Virtual Reality or Virtual Stupidity?

Noel Le — Mon, 16 Oct 2006 14:53:53 -0000

That picture is actually of Adam. The pink shirt and Darth Vader helmut are a disguise when he plays video games.

Hmmm, strange. Why did Adam get a better computer monitor in his office than me.

Re: Has Wu Been Reading Lee?

Noel Le — Wed, 18 Oct 2006 01:05:54 -0000

This example has well established precedence in the technology industry.

Companies often have a feedback loop for consumers. Look at the usability and function integration processes of any large software maker. The companies may not be responding to the threat of regulation, but they are listening to consumers.

In innovation policy, we call this diffusion, whereby a product enters the market, and how consumers adapt or respond to it figures into the second generation release.

Re: Quote of the Day

Noel Le — Wed, 18 Oct 2006 01:11:30 -0000

Again, DRM should be looked at alongside the DMCA. The writers of the DMCA knew DRM would only provide a limited curb to piracy. All these arguments that DRM should be eliminated, or does not serve useful purpose, only reiterate one of the central tenets of the DMCA.

You got my point though right. I asked you to explain why DRM is a fallacy, and then pointed out that your dislike for DRM leads you argue for repealing a law, doing away with an industry sector, entirely changing the business model for artists/musicians and making proposals you know would increase piracy. Tim, THIS IS A LOT!!!

Re: Show, Don’t Tell

Noel Le — Wed, 25 Oct 2006 14:06:48 -0000

I agree with you that policy discourse should use concrete language and examples. However, lets remember its the information economy we're talking about, its easy to fall into abstraction given that the very technical basis of innovations reside on 1s and 0s.

Perhaps the most important abstraction (and its abstract only if you've not worked in the industry) to keep in mind is that high fixed costs for producers are not readily tangible while the obvious mediums or modes of distribution they work with are almost at marginal costs. This is an important consideration any time somebody wonders why they don't get products/services for free, or asks why firms need to leverage various business models. The answer is that producers need means to appropriation in order to create and make a living.

Hmmm, early in your post you talk about how this new coalition is about "innovators, artists and consumers." I think you're more correct later on in the post when you narrow the conversation down to just consumers. EFF, PK are hardly concerned about innovators, and artists; or anyone who creates consumers products.

The general economic and market failure of companies who follow the policy teachings of EFF and PK leaves these entities with only IP leveraging firms to badger; if their policy agendas were tenable at all, you'd have successful companies that provide alternatives to products like iTunes/iPod without DRM, and that don't work under perilous legal clouds.

Not to be nit-picky, but "Plays for Sure" concerns Zune, not the iPod (I'm sure you know that, but some readers might not).

Re: Show, Don’t Tell

Noel Le — Wed, 25 Oct 2006 15:08:19 -0000

Oh OK, I see what you were saying. If you're talking about why songs formatted for MSFT technologies don't play on the iPod, then your sentence makes sense. I thought you were commenting on why Microsoft's Plays For Sure DRM system does not play on Zune.

Re: Kulash on DRM

Noel Le — Wed, 25 Oct 2006 15:12:52 -0000

Yes, Marlon Brando, I mean, Han.

Re: Show, Don’t Tell

Noel Le — Wed, 25 Oct 2006 16:58:42 -0000

The CEA includes many innnovators among its members. Its a guess, but think most of them are hardware and device makers, businesses that rely more on patents than software and service firms. Copyright is not a concern with these kinds of companies.

I doubt CEA consulted with each of its members before joining this coalition. More likely, several prominent members with interest in peeling back copyright/DMCA policy drove its decision. Thus, nobody should blame CEA's members, but rather an organizational leadership that either says: we like IP, just not copyright; or, we like IP, depending on who it belongs to.

Re: Hear Me Stumble over My Words

Noel Le — Thu, 26 Oct 2006 13:30:34 -0000

Your disagreement with the DMCA merely arises from the lack of clarity in the anti-circumvention exemption. Come to think of it, your disagreement with software patents, as seen in your patent of the week series, stems from your dislike of their broad-functional claim construction. The basis of your two main policy positions then, against the DMCA and software patents, seems to be that you don't like or understand what you read, rather than how these items benefit creators, consumers or innovation.

Re: Hear Me Stumble over My Words

Noel Le — Thu, 26 Oct 2006 13:50:50 -0000

Tim, what a law (or patent falling under the law) says on its face and how its interpreted are two different things. I've been trying to tell you this for months!!!

Re: Hear Me Stumble over My Words

Noel Le — Thu, 26 Oct 2006 14:45:57 -0000

You are calling for clarity but this is far removed from your policy arguments to repeal the DMCA and eliminate software patents. It would take more serious evidence than lack of clarity to really support these positions.

Your statement about courts not providing opinions that would allow predictible legality under the DMCA is even more odd. Here, you're criticizing how courts do not engage in policy making. Courts, from what I've seen in DMCA cases, only take care of the issue at hand. They should be more extensive if you ask me, not as a form of judicial activism, but to use their role in interpreting (clarifying) the law to decrease ambiguities in it.

Lets see, you base your views on patents by criticizing their claim construction, you don't like the DMCA b/c of the way its written, you find a general fault with IP b/c courts write narrow opinions:):):)

Re: Software Patent of the Week: IBM, Patent Troll

Noel Le — Fri, 27 Oct 2006 14:11:30 -0000

I'd wait to see how the courts interpret the patents before claiming IBM is abusing the patent system. Or perhaps you think you've already done the work of the legal teams from IBM, Amazon, the judge and the USPTO.

By the way, just like the case with monopoly, freedom and free markets, your apparent use of the term patent troll is so broad as to not have any meaning. So tell us Tim, how do you define patent troll.

Re: Software Patent of the Week: IBM, Patent Troll

Noel Le — Fri, 27 Oct 2006 17:14:30 -0000

Crosbie, that would fall inline with how Tim will use the term patent trolls... and just like how he uses monopoly and hierarchical beauracracies, there's no meaning in what he says.

Re: Hear Me Stumble over My Words

Noel Le — Sat, 28 Oct 2006 15:00:42 -0000

I'm not claiming the DMCA is a legislative work of art. I agree that its too vague. The point of diagreement between Tim and I is how to react to the DMCA. He wants to simply repeal it, which I view as careless and unconsidered reasoning. It would be more practical and beneficial to amend the DMCA.

The DMCA probably should have made more clear how the anti-circumvention exemption aligns with traditional fair use under the copyright act, and addressed some "tinkering" practices that may be commonplace and beneficial among hobbyists and those in the industry. I've written about this here (http://weblog.ipcentral.info/archives/2006/10/j...).

I'm curious, whats your view on what the DMCA should say.

The DMCA does read like a broad policy statement, which makes me suppose that courts have a lot of flexibility in their interpretation of it. The DMCA is not the only law to be vague on its face, and similar to other such laws, it will be clarified through the courts and further legislative changes.

Re: Software Patent of the Week: IBM, Patent Troll

Noel Le — Sat, 28 Oct 2006 16:31:34 -0000

Tim, how do you tie one patent, or several patents, to an overall critique of the patent system and its relation to R&D.; There are limitations in analyzing 1 patent per week, you have to be careful about over-generalizing. To make some of the claims you do, look at resources available at the National Bureau of Econ Research, or economic studies from the Bureau's researchers.

BTW, the "patent premium," how much increased patenting spurs additional R&D; investment, is lower in the software industry than in others (pharma, semiconductor, etc). Thats why some patent policy researchers, including me, like to see the novelty-obviousness standards raised and the scope of patents narrowed through more detailed claim construction. Theoretically, this should result in fewer patents, but ones of higher quality.

The discussion here on how to treat a patent that turns out to be obvious due to natural technological progress and maturity is an interesting one. I'd say courts should consider the level of obviousness with respect to existing societal knowledge; unless the patent holder somehow contributed to that knowledge they shouldn't be able to lay full claim to infringement. I have to think this through more, but such an "existing knowledge" standard is not quite the same as an independent invention proposal.

Re: Hear Me Stumble over My Words

Noel Le — Mon, 30 Oct 2006 08:44:06 -0000

They're not flip sides of the coin Baumstark. For one, simply repealing a law can have more costs and ill-effects that the law caused in the first place. Also, you make the same analytical jump that Tim does- how do you go from a law being vague to wanting to repeal it. Doesn't vagueness suggest clarification as its remedy?

Re: Hear Me Stumble over My Words

Noel Le — Mon, 30 Oct 2006 08:56:09 -0000

A qualification, if provisions of the DMCA are unconstitutional, then of course they should be repealed. I don't see this happening with the anticircumvention provision though.

I raise this point because the justification to act on a law has to, well, justify its remedy right. So if societal costs of the DMCA's anticircumvention provision outweigh its benefits, then why choose a remedy like repeal when that might incur more costs and there are less drastic avenues to pursue. Repealing DMCA provisions because of unconstitutinality is consistent with this reasoning because any unlawful law needs to be repealed..

Re: Hear Me Stumble over My Words

Noel Le — Mon, 30 Oct 2006 10:11:42 -0000

That there exists known abuses to the DMCA's anti-circumvention provision, that is hardly basis for arguing its ineffectiveness. All it tells me is that copyright owners are economical about who they enforce their copyrights against.

As for benefits of the DMCA, Jim Harper earlier wrote a beautiful blog on how digital music's creative destruction brought down Tower Records. Didn't this happen b/c of DRM under the legal framework of the DMCA.

To be frank, I see some of Tim Lee's arguments on DRM on this site, and it just floors me the extent to which he has to stretch even basic things to try and prove his point. Thats probably b/c he never reads market research or economics reports (and prefers to review 1 patent per week), and cooks the books to support his views.

Re: Government Doing Too Much

Noel Le — Mon, 30 Oct 2006 20:31:50 -0000

Here's a book related to Jim Harper's issue of civil liberties and the fight on terrorism.

Terrorism and the Constitution: Sacrificing Civil Liberties in the Name of National Security
by James X. Dempsey and David Cole.

www.powells.com/biblio?PID=24075&cgi;=biblio&sh...

Re: Karaoke and Compulsory Licenses

Noel Le — Tue, 07 Nov 2006 09:16:20 -0000

OK, Glen, then is that "dead weight loss" affecting music production. That is Tim's overall argument. I'm not saying its your position, but thats what I was addressing above.

I think a more practical solution, rather than compulsory licensing, is for karaoke companies to partner with musicians and labels.

On the other hand, if karaoke companies are already paying below "monopolistic prices," then aren't things going pretty well. They're getting a good deal.

Re: Arguing with the Inevitable

Noel Le — Tue, 07 Nov 2006 10:30:27 -0000

Tim, please explain this: "open systems tend to triumph over closed ones."

Focus on detailing your conception of "open." You've read Professor Chesbrough right.

Also, explain this: "the inefficiencies of creating large software products using a centralized, Soviet development model will render that model unsustainable."

Inefficient? Did you consider the market. Many consider the market as the ultimate efficiency, and it says the most for IP protected technologies. You have an entirely different idea about efficiency, based on abstract principles. The difference between the market and your reasoning, of course, is production. Efficiency needs to factor in what is productive.

Re: Arguing with the Inevitable

Noel Le — Tue, 07 Nov 2006 11:03:10 -0000

Agreed Luis, Apple isn't playing as nicely as folks think.

Tim, you differentiate between "open" and proprietary standards; what do you think of proprietary standards where the company actively licenses out necessary protocols for others to make itneroperable products, or puts those protocols under a BSD like license.

***As for efficiency, I don't think that's a hard concept to understand. Microsoft spends an order of magnitude more money developing proprietary products like Windows, SQL Server, IE, and IIS than their open source competitors spend developing Linux, MySQL, FireFox, or Apache.***

And Microsoft recoups it in revenue right. Now put all the companies that make your FOSS products together. How do they stack up.

Oh, and please never mention IIS to me again. That program is as reliable as a wooden tennis racket.

Re: Arguing with the Inevitable

Noel Le — Tue, 07 Nov 2006 11:43:42 -0000

Tim, again, how do you address "open innovation," as espoused by Professor Chesbrough. It describes the increasingly vertically-decentralized aspect of the software industry, where firms have formalized inputs/outputs that they leverage by IP licensing and FOSS practices.

You are different from Chesbrough. You look at the code level to describe "open," while Chesbrough looks at the firm, industrial and economic level. Bascially, you're trying to explain what Chesbrough does but you do so by generalizing from the most microscopic level. Hence, your conception of open is quite removed from his.

Re: Arguing with the Inevitable

Noel Le — Tue, 07 Nov 2006 12:06:25 -0000

Jim Harper, let me take a different angle then.

When you talk about effiency, you have a goal in mind. Right? If you want to optimize your means to that goal, say a software program, or R&D; process, you try to get to a point of economies of scale. Efficiency is measured by the rate of increasing returns. Tim's angle is that effiency should be measured in pure dollars, based on comparing FOSS and proprietary technologies (which is why I thought my point about revenue was relevant). He even mentions specific products that compete between these two camps. But just because those products perform similar functions, does not mean that they are comparable for measuring increasing returns. Consider that technology is rarely better in the market just b/c of technological superiority; how does it interact with other technologies, how much are third party developers attracted to make interoperable products. Microsoft's products are more integrated between their own offerings (when they want this to be the case..:) and with third party products that they partner with. Second, and this point relates to the first, what technology do consumers prefer; I'm not talking about the average consumer who wants to buy technology for its purpose, not to tinker with it, and here I'll argue that consumer wellfare is increased when they can buy products that suit their simple needs. The market share of proprietary technologies suggest that consumers are pretty happy with what Tim calls "Soviet" style business.

These are just a couple examples of how you can't measure efficiency between FOSS and proprietary technologies by pure R&D; dollars along. Jim Harper if you have other things in mind to talk about consumer welfare, I'll address them.

Re: Arguing with the Inevitable

Noel Le — Tue, 07 Nov 2006 13:06:14 -0000

Tim, as long as you won't address my points on monopoly, efficiency, and openness, fine:):):):)

But tie your argument to the actual industry. How is what you say about efficiency relevant to whats going on with companies rather than some chalkboard.

Also, every fiscal year, corporations go through annual review period. Often, especially recently, R&D; groups had their budgets downsized, or diminished in annual growth, so they the company can focus on its prioritized innovating activity. So, are you saying that you know more about efficiency or how to plan the innovation process than all the execs and business managers at IP firms. Is this right. And how are firms who are consistent with your views doing.

Tim, you miss several things. Corporations don't just work on existing products. Further, there's more to innovation than just the product. Companies spend a lot of time and money on integration, licensing, joint development and planning products for 5-10 years from now. DO you consider these things inefficient.

Re: Arguing with the Inevitable

Noel Le — Tue, 07 Nov 2006 13:54:36 -0000

Jim Harper writes: "This is consistent with Coase's argument that the firm arises to meet an organizational need the market can't."

I would qualify "markets" as "perfectly competitive" markets. Tim's argument touches on the point of difference between Coase and Ken Arrow.

Jim Harper writes "Microsoft's high and persistent profitability signals likely inefficiency and a lack of competition."

How is MIcrosoft inefficient (it makes many more products than any other single firm, or software movement), and how is there lack of competition. A broader question is how is MIcrosoft harming consumers by its profitability.

To merely cite profitability as harm to consumer welfare suggests a very proactive support for antitrust enforcement. Is this what you mean.

I will point out though that economists find high turnover rate of incumbents, a healthy onslaught of new entrants and countless new technological products daily in the software industry. If Microsoft is harming ocnsumers, other players in the field are offsetting its effects. So I don't see Tim justifying any kind of change in the industry by calling big firms inefficient.

Re: Legal Process is Good Business

Noel Le — Tue, 07 Nov 2006 15:13:28 -0000

A lot of companies fear their competitors will use FOIA requests based on law enforcement information against them. Given the government's general ineptitude with even their own data and computer networks, I'm sympathetic to this concern.

Re: Plays for Sure, Some Exceptions Apply

Noel Le — Tue, 07 Nov 2006 20:15:24 -0000

I went out and bought an iPod when I heard of Microsoft Zune's specs. Several things surprised me:

1)what is Microsoft's business strategy, to acquire customers from other music players?
2)Does Microsoft plan on a similar business model as, say the iPod (break even with music, profit off hardware and peripherals)
3)Did Microsoft consider its current market position in the music player market (zero), and how it could catch up with other companies.

These questions make me think we don't know everything about Zune yet. MIcrosoft has to have something up its sleeve. If Microsoft plans a surprise, I hope its a good one...

I'm happy with my iPod, and pretty surprised with Microsoft. I wouldn't go as far as to say this is an example of how DRM can hamper consumers though, since music fans can still listen to their MSN songs (including MP3 formats) on other players.

If you don't like a product like Zune, buy something else, but don't compalin about the product you didn't buy afterwards. Its kind of like test driving cars, when you finally decide on one, what does it matter to you those models you didn't like.

Re: Arguing with the Inevitable

Noel Le — Wed, 08 Nov 2006 01:28:06 -0000

***Tim sees software as more amenable to spontaneous creation (like a spoken language), than top-down design (like an automobile). His prediction of this as inevitable is mighty bold, but if you give him a long enough horizon, he's probably right.***

Jim Harper, where do you gather this. Tim sees software amenable to many things, except for the market. The prediction actually completely ignores the market (what will consumers buy), existing TCO analysis (FOSS is cheaper to produce, but consumers may not pay less for it), and technological progress (does FOSS make good mass market products).

This whole post begs so many questions; Tim has explained 10% of them as hyperboles.

Re: Plays for Sure, Some Exceptions Apply

Noel Le — Wed, 08 Nov 2006 12:57:09 -0000

Luis, I was hoping for some extraS from Microsoft Zune in the form of wireless song downloads from their music service, built in GPS navigation, the ability to harness static electricity from the atmosphere...

Actually, Steve R, the article you cite doesn't really say anything new. Unilateral changes to licenses and contracts occur at your gym, place of employment, everywhere you go. With technology, its prominent b/c firms have to continually upgrade and improve on their products. Continued use or performance under a license or contract is taken as acceptance of those uniltaral changes. If you like the "product," but not the licensing changes, just remember the license IS THE PRODUCT.

I haven't looked at the wired article, but just pointing out that its making a lot out of something that we face everyday.

Re: The Technology Liberation Front » Archive » Microsoft, Novell, and Software Patents

Noel Le — Thu, 09 Nov 2006 12:37:20 -0000

***In Novell's world, if I write something and GPL it, Novell will try to convince customers to buy support from Novell instead of from me (the original author) because of some nebulous, unspecified, almost-certainly-bullshit "IP issues" hinted at by Microsoft and legitimized by Novell for the price of $348 million.***

Novell would try to get customers to pay it for support rather than the author, even without the MSFT deal. Of course, if you wanted customers to go to the author for support, tell him to not use the GPL!

***In proper open source, Novell (or anyone) is welcome to take my code and convince customers to buy support from them because they are a big company and I'm just some guy on the Internet. But Novell (or anyone) is not welcome to proprietarize my code.***

Where is Novell propertizing FOSS code. Thats a contract violation.

***Microsoft is laying the groundwork for splitting the open source community in two. On the one hand, you'll have a handful of "open source" companies that sell products like Linux under the umbrella of cross-licensing agreements with Microsoft and other big patent holders. On the other hand, you'd have the rest of the open source community.***

I think Stallman is already doing a fine job of splitting the FOSS community. Funny how you ignore one issue that comes form within FOSS to splinter it, and hammer down on a proprietary company that is basically helping to calm the very fears that you Tim Lee, constantly rave about (software patents). I think your criticism of the MSFT-Novell deal boils down to frustration about why Red Hat and independent developers got left out of the big tent.

***regulating the software industry is difficult because there's no clear line between professional programmers and hobbyists. You can't impose burdensome regulations on some guy who's writing code in his basement on the weekends.***

You cannot and should not sue the guy tinkering away in his garage, but you should sue the company distributing or selling services off his code.

Re: Pogue on Zune

Noel Le — Thu, 09 Nov 2006 12:40:19 -0000

***So now Microsoft is starting over. Never mind all the poor slobs who bought big PlaysForSure music collections. Never mind the PlaysForSure companies who now find themselves competing with their former leader. Their reward for buying into Microsoft's original vision? A great big "So long, suckas!"***

PlaysForSure DRM users can stick with their existing music players. Its not like MSFT is making PlaysForSure songs self-destruct.

Re: The Technology Liberation Front » Archive » Microsoft, Novell, and Software Patents

Noel Le — Thu, 09 Nov 2006 13:48:12 -0000

I should have been more clear, but I would qualify your statement to: "companies or entities that offer infringing open source code should be the concern for patent holders, not individual developers unless they distribute or provide access to infringing code as a commercial offering." Whether anyone should be sued I'll leave to the courts and USPTO decide.

Re: Software Patent of the Week: NTP is Baaaack

Noel Le — Fri, 10 Nov 2006 01:58:53 -0000

Tim, this case is less an issue with the patent system as it is about some judge (and every patent lawyer I talk to says "THATS JUDGE!) who decided to curtail incoming evidence (from the USPTO) that would change the very basis of the case to begin with.

Re: Novell and MS–the market brings a new beginning

Noel Le — Sat, 11 Nov 2006 16:37:25 -0000

Luis, are you implying that big and small firms can never collaborate, or that its somehow MSFT's fault the financial limitations of FOSS business models.

Sonia's reference to Judge Jackson is interesting. Jackson (when he was awake) didn't think MSFT had viable competitors. In fact, Novell probably isn't a viable competitor to MSFT; but the general FOSS OS market is. To say that MSFT needs to partner with a competitor rather than a "lapdog" as Luis states it, would have MSFT partnering with the entire FOSS industrial segment or not work with FOSS at all. Obviously, MSFT is more practical, and sought to work with Novell.

Re: Samba Blasts Novell

Noel Le — Mon, 13 Nov 2006 11:59:45 -0000

***this agreement is clearly a step in the direction of making non-Novell users of GPL'ed software second class citizens under patent law.***

How is clarifying legal use under patent law making anyone a second class citizen. FOSS users should demand that other FOSS companies follow Novells route.

If Novell violated the "spirit" of the GPL, it wasn't well written enough to prevent such action.

Re: Samba Blasts Novell

Noel Le — Mon, 13 Nov 2006 13:04:24 -0000

Whether about liberty, reciprocity, freedom or anything else, Novell is not violating the GPL. If anything, its giving to its customers more value by ensuring them protection under patent law. If anyone thinks they become a second class citizen, they're using a FOSS distro with an inflexible and impractical biz dev department.

I find it a bit amusing how Novell's FOSS competitors claim the MSFT agreement distniqushes between FOSS code offered by Novell and distros. In the business world, thats called value add. Cheers to Novell.

Re: Samba Blasts Novell

Noel Le — Mon, 13 Nov 2006 13:36:30 -0000

Tim, are you implying that making a deal with Microsoft is somehow similar to hiring the mafia. Can you clarify. How exactly does your analogy apply to the situation. I mean, you make such a statement, but then in your second paragraph you say:"Novell obviously isn't doing anything as bad as breaking peoples' legs." The result is that you don't even address Steve's comment.

Also, how does Novell implicitly encourage MSFT to sue non-Novell FOSS users. Are other distros infringing MSFT's patents. If they are, what difference does the Novell agreement make- the infringers would potentially be liable anyways.

Re: Why is Gary Shapiro picking on Cary Sherman?!?

Noel Le — Mon, 13 Nov 2006 18:29:23 -0000

Tim some device makers Shapiro represents want to make revenue by the value add of copyrighted works. If they had any other viable biz model w/o resorting to piracy, none of this would be an issue.

Re: We Want You!

Noel Le — Mon, 13 Nov 2006 19:56:38 -0000

Sounds like a good effort.

Although I tend to disagree with Jim Harper and Tim Lee, this may be a valuable effort.

Several issues are worth examining, as I believe they don't receive sufficient treatment in current literature on peer production:

1)how does "peer production" relate to the practice of IP firms collaborating through IP licensing and joint development?
2)explain in more depth "economic freedom."
3)how does commercial and non-commercial peer production differ? What are areas where one may be more suitable than the other?
4)what is the significance of different meanings of "economic activity?"
5)what is peer production's benefit to consumer welfare, innovation and technological progress?
6)how is the decentralized trait of peer production, as described by Professor Benkler, different from the decentralized system of innovation enabled by IPRs.
7)is peer production a push or pull phenomenon?
8)what are some limitations to the benefits of peer production?

I am curious though, what "major think tank" would publish this?

Re: Samba Blasts Novell

Noel Le — Mon, 13 Nov 2006 20:04:17 -0000

Benn Finney, I'm not going to address patent licensing generally, but I will refer you to some good academic research on licensing and the emerging industrial organization of the technology industry: Open Innovation.

Re: We Want You!

Noel Le — Mon, 13 Nov 2006 21:07:28 -0000

Sure, I'll add them to the outline, when I have time...

Still, if the paper is available online, you should save some parts of the project only for the print version, to induce someone to publish it. Perhaps including introductory remarks or comments by policy makers in the print version will be enough added value.

Re: Why is Gary Shapiro picking on Cary Sherman?!?

Noel Le — Tue, 14 Nov 2006 00:54:44 -0000

Eric, Lewis raises a good point above that the Digital Freedom campaign is so vague right now that its hard to critique its policy positions. But you raise a good issue and my point may not be relevant if it turns out they have considered views of what constitutes theft and fair use. But by staying generic on the issues, the campaign invites statements like mine and Cary Sherman's.

The "Digital Freedom" proponents have consistently staked their case out of the mainstream. ..Gary Shapiro's comment that unauthorized downloading is neither "illegal nor immoral" is illustrative of the extremist position of that group, especially given the U.S. Supreme Court's opinion otherwise in its 2005 Grokster ruling.

The CEA was on the wrong side of that unanimous decision, supporting illegal file-sharing network Grokster while Justice Breyer, one of the court's most tech-savvy judges, declared that the activity on Grokster's system was "garden-variety theft." In fact, every court has refused to accept the argument that such activity is fair use. Yet the fair use revisionists keep trying, relying on grandiose notions of the doctrine that have no basis in law and reflect bad public policy.

Re: We Want You!

Noel Le — Tue, 14 Nov 2006 12:39:18 -0000

I dont think the fair use doctrine pertains. But Charles you state the issues well. FOSS supporters should know the significance of distribution as its central to the GPL and DMCA. Also MikeT, Charles hinted at a good point- intentions dont matter and legal status of a developers work can be decided after the code is written.

Re: Shapiro Speaks!

Noel Le — Tue, 14 Nov 2006 13:04:47 -0000

real and intellectual property are different and are governed by different principles. Downloading a copyrighted product does not diminish the product, as would be the case of taking and using tangible property such as a dress. At worst, it is depriving the copyright owner of a potential sale. Indeed, it may be causing a sale (through familiarity) or even more likely, have no impact on the sale.

Here's an interesting part of Gary Shapiro's speech.

Copyright owners rarely claim that unauthorized downloads or copying diminish their product, rather they claim the second part of Mr. Shapiro's statement- that such activities amoung to lost revenue. But the fact that he qualifies potentially lost revenue as "may" or "more likely" beneficial in some way just weakens the argument against copyright holders.

Still, the speech was in 2002. I don't want to be unfair to Mr. Shapiro if these views aren't held by him and CEA today.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Tue, 14 Nov 2006 21:07:27 -0000

Tim, you call all "IP firms" patent trolls, and regularly cite any instance of an firm leveraging or defending its IP as anticompetitive. You state very few companies have used their IP anticompetitively, but you want to repeal the DMCA and eliminate software patents based on the simple issue of non-clarity. Further, your statement here is consisent with Braden Cox's claim that you oppose all proprietary firms.

My beef is with companies that try to use the patent system to erect barriers to the creation and distribution of open source software.

You should read some Lemley. Its good for the soul.

"IPRs merely prevent others from competing to sell copies of a particular product, not from selling different products that compete with the original."

Evidently, you disagree with Lemley, because you see IP preventing others from distributing or selling copies of products as anticompetitive.

Your statement here is a bit funny.

I don't think I've ever "broadly promoted open source software development and distribution over its proprietary brethren." What I've tried to do is to advocate a level playing field

Tim, its not a level playing field to begin with. Do you know what. Its because proprietary companies are more successful. By level playing field, you mean that you want to level the playing field as if no innovation has occured with proprietary industry. By unncessary barriers you mean any barriers at all, as if FOSS should get a free ride into the markets. Also, how can you say you don't broadly promote FOSS, as you call for the downfall of the "Hollywood studios," predict that technological innovation will eventually become predominently peer-production based, and like James Gattuso pointed out you often provide value judgements to support your claims rather than looking at economic indicators that suggests your alternatives to IP based business models are not tenable.

Stephen, how does Kuhn's argument refute Braden Cox's claim about transaction costs.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Tue, 14 Nov 2006 21:43:48 -0000

Tim and many others have demonstrated over and over and over again that this is almost always the case with software patents.

By doing 1 patent per week?!? Have you looked at any economic patent studies lately that say counter (or support) Tim's claims of patent stifling competition. There's a limitation to analyzing one patent per week, and the TLF series focuses more on the technical aspects than how the patents, on net, hurt the industry.

By value judgements in Tim's arguments, I refer to his many hypotheses and outright dismissal of market indicators, the stock market, the evolution of the software industry and relative performance of various business models. That may be Libertarien, but the extent to which he integrates it into his writings is, as Braden Cox suggests, indicative of his broad support for FOSS and dislike for IPRs.

Hey, not everybody likes IPRs. Fine. And its fun to debate with Tim. But that does not diminish the fact that Braden Cox's comments are pretty much on the spot.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 01:34:14 -0000

None of the studies of patents that I have seen have convinced me of their worth...

That's because patent economics is a difficult field. Only neophytes say they know how innovaiton and patents work. Mark Lemley called patents the most unproductive of academic inquiry, because we still know very little about their overall effect. Still, there is substantial evidence patents represent the evolution of the software industry and provide benefits to those who obtain them (per Professors Ronald Mann, John Allison, Mark Lemley, Dan Burk, Ken Dam, Donald Chisum, David Mowery, Henry Chesbrough, Iain Cockburn, Joshua Lerner, need I name more?). I can email you many links to reviews I've done on the literature.
If you are not convinced by economic research, I don't see how one patent per week is more persuasive...

On the other hand, it strikes me as a bit amusing that software patent critics often cite the least credible sources of arguments against software patents, while ignoring industrial economists who dislike software patents as much, yet are even respected by software patent proponents.

Cox's comments strike me as wrongheaded in two ways: First, his conclusion that "good programmers write good code, regardless of ideology," is true but trivial--the point is not indoctrinating programmers but working to free them from patent thickets and the threat of legal sanctions that currently threaten them.

First, although there is debate over IP, nobody questions the qualifications of programmers on either side of the issues. Second, what evidence is there that programmers are somehow stifled by IP law. Its funny you use the term patent thickets. Carl Shapiro, Mark Lemley, Dan Burk and Rosemarie Zeidonis all use this term, but their focus is on industries other than software.

You raise other good issues, but I don't want to stray far from Braden Cox's post. Email me if you want to continue the tangential discussions.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 09:36:07 -0000

Software idea patents attempt to revert to a zero-sum game, by dividing each recipient against the others.

Finney, this does not explain how companies collaborate and share technologies through patent licensing. In today's "open innovation" industry, firms often need to specialize, and then license complementary technologies from others. That does not sound like patents having a net-net dividing effect. If anything, patents' effect of pitting firms against one another is called inducing competition by allowing appropriation of investment.

FOSS supporters often (not necessarily you) have a warped sense of competition- they claim patents stifle competition, but then ideologically talk themselves out of being commercially competitive. The end result, as Braden Cox points out, is this non-productive perspective that merely says "us vs them." To justify eliminating software patents by such a concept of "competition" is simply half-hearted.

I'd like to see Sonia Arrison comment on this post. Love some stuff that she's written on TLF. Very insightful.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 10:52:15 -0000

Lewis, I'm curious. So, you like copyrights for software more than patents. Do you propose the current copyright regime, under the DMCA, or some kind of scaled back policy.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I'm not sure if he's just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 12:14:17 -0000

So, tell me, if you know what copyright is, how far back do you want to take the software industry. The industry has evolved, and its policies must as well.

Copyright was significantly given a demotion after Lotus v Borland when firms began to rely more on patents.

Check out some literature on copyrights and patents as substitutes/compliments in the MODERN software industry. Authors of note include Mowery, Graham, Lerner, and a couple others. Patents are now the dominent form of protection.

Re: What Blanket Cross-Licensing Says about Software Patents

Noel Le — Wed, 15 Nov 2006 13:29:59 -0000

This returns to your theme of clear boundaries. I know it's a libertarien concept, but many things exist in the world without bright lines. Clear boundaries are a political or ideological construct, not *necessarily* an economic one.

the popularity of blanket patent cross-licensing agreements among software firms is pretty strong evidence that software patents don't do much to incentivize creativity.

Patents incent capital investment, not creativity unless you're talking about prospecting patents for different commercialization opportunities. In any case, explain how this pertains to the rest of your post. How is your statement a reflection on the value of patents. Are blanket cross-licensing agreements the dominent form of licensing in the industry- that seems to be your presumption.

a software patent doesn't represent anything in particular. Which means that in practice, a software patent amounts to nothing more than the right to hire a lawyer to harass your competitors.

Where do you gather this. Do you know how much licensing occurs every day in the industry. IBM rakes in a nice $2B plus.

Licensing happens via several reasons. A company will find a patent or find out another firm is working on a patented technology. It contacts that firm, and lets say negotiations go well, and the company licenses the patent. They don't just get the facial value of the patent though- the licensor will have incentive to see how their patent is commercialized or improved upon (they might even have a share in profits), and thus may share with the licensee some information not contained in the patent claim.

Re: What Blanket Cross-Licensing Says about Software Patents

Noel Le — Wed, 15 Nov 2006 13:41:03 -0000

TIm has a funny way of putting it. Nobody is ignoring the patent system, they're leveraging its flexibility through private contracting. Evidently, Tim thinks that if the patent system leverages other aspects of private ordering, its a broken system.

Whats funniest about his comment is that apparently, like the Microsoft-Novell deal Braden Cox wrote about, Tim doesn't like firms working with patent holding companies.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 14:32:57 -0000

Tim writes:***You can't possibly mean that. You're telling me that if Microsoft had a choice between giving up its patent portfolio or its copyrights on Windows and Office, they'd opt to keep their patents? That's absurd.***

No, your statement is absurd. Microsoft spends much more on patented technology. On the other hand, you *could* say that all code is copyrighted, but still, prominent investments are made with patenting in mind.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 14:49:37 -0000

OK I see your point on "spending more on patented rather than copyrighted technology." All of their software is copyrighted, but the big investments go into products intended to be enforced through patents. The big difference between patents and copyrights for MIcrosoft is probably the patent rule against independent invention.

WOuld Microsoft give up patents before copyrights? Well, it leverages both as complements. I don't think it would give up either. In other words, its impossible to answer your question.

Re: Microsoft and Novell - Exacerbating an Ideological Divide?

Noel Le — Wed, 15 Nov 2006 15:21:09 -0000

Let me qualify that. The big investments go into *technologies* (not necessarily products) intended to be enforced through patents."

Email Microsoft Research and ask them what technologies! www.microsoft.com/about/legal/intellectualprope...

Re: The DRM Train Wreck on National TV

Noel Le — Thu, 16 Nov 2006 11:44:21 -0000

Explain to me how DRM is a trainwreck.

TIm, patent law, probably more than the DMCA, prevents reverse engineering for interop. But again, this is unclear, and to argue for eliminating software patents on this basis returns to your theme of abolishing anything that does not give you bright lines:)

Adam is right though, fragmentation of DRM systems does induce competition. Firms then have to compete to create the dominent platform. If you wonder why this is important, then ask yourself why FOSS has not created the dominent music player-service product w/o DRM. They woudln't be able to capture value by following your proposals Tim. They'd go broke in a heartbeat. I write more to this here:

Although standardization of DRM systems would result in lower prices for digital goods, this has not occurred as some scholars like Suzanne Scotchmer of Berkeley predict. In Fragmentation versus Standardization in the Market for Digital Rights Management Solutions (July 2006), several rearchers at Law and Economics Consulting Group ask why, and find that fragmentation of DRM solutions arises from market competition and the different uses of DRM that firms leverage. 10. Acknowledging that fragmented DRM schemes not only prevent price reducation but also limit the value of products for consumers, the researchers point out the ease enabled by low switching costs between different proprietary brands. 17. They note that users often buy several different DRM solutions at once, as content owners often release their content in many different formats. 18.

However, the benefit of fragmented DRM systems arises in competition to create products with greater functionality and value, thus bringing more innovation to market in the long term. 20. Competitors find ways of leveraging existing content sources and perhipherals, such as RealNetwork's reversing engineering of Apple's DRM around iTunes. 20. The DMCA may bring restrictions, yet the market has its own correcting balance through increasing the flexibility with which consumers can enjoy content. 23. Finally, as no DRM systems have become industry standard "vendors compete for more content owners by developing secure DRM solutions, and for customers by offering a wider selection of content and more flexibility with the purchased product." 20.

Re: The DRM Train Wreck on National TV

Noel Le — Thu, 16 Nov 2006 12:47:53 -0000

Steve R, your hypothetical is interesting. Yes, thats how things work, and if there's value in backwards compatibility, then companies will pursue that course.

Its funny how those who speak of consumer welfare want all of their cake now, without worrying about long term innovation and investment. This assumes something very depressing- that innovation is somehow at its peak, thus society should squeeze as much out of existing innovations as possible by commodotizing it in the name of some weird conception of consumer welfare.

Consumers benefit from the introduction of new innovations. If you handicap producers, those innovations won't come to market.

Re: The DRM Train Wreck on National TV

Noel Le — Thu, 16 Nov 2006 13:22:47 -0000

OK, fine. My point though is that various doctrines of patent law are used to protect reverse engineering, but patent law does not have a specific reverse engeering exemption like copyright law does.

Re: The DRM Train Wreck on National TV

Noel Le — Thu, 16 Nov 2006 15:11:33 -0000

Good point Steve, but with the popularity of the iPod and its peripherals, I don't think consumers care that much about interop. If they did, there owuld be a new market for DRM-free music players-services, and any company that could pull profit off such a business model would get right to it.

What strikes me is that most of the concerns you read about over DRM don't have that much do deal with the market (consumers). The market has told Apple its doing a fine job.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Thu, 16 Nov 2006 16:06:20 -0000

There's still healthy progress going on in the consumer electronics industry, and I don't think that will change any time soon. I just think this progress has occurred despite, not because of, the DMCA.

Tim, again you express your lack of confidence in the market. Somehow, consumers flaunting their spending power to by DRM-enabled systems is not market activity to you.

So, what would the digital entertainment industry look like without DRM Tim? Who would bother making the iPod.

If any business exec would read even a handful of your DRM writings, they'd see a very lucrative market for DRM-free music players-services. But either you're more visionary than most entrepreneurs and business development professionals, or they don't see much opportunity in the market for what you propose.

I've said this before. Tim, Your view against DRM is pretty much a natural rights-liberty perspective. When you try to argue it through business or technological perspectives, the argument is simply a stretched effort.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Thu, 16 Nov 2006 20:00:56 -0000

X why is there no market for your views then. Why doesnt someone tap a DRM free service-player business. its a very simple question Tim evades time and again. DRM makes sense to consumers and producers but evidently not those who think technology should be guided by ideology.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Thu, 16 Nov 2006 21:12:07 -0000

Also, X, what industries do Boldrin and Levin talk about. The fact that they attempt a universal theory of innovation is why even IP skeptics in academia dismiss them.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Thu, 16 Nov 2006 21:59:06 -0000

X so what is the problem if successful players and services dont leverage DRM. Whats wrong with the market. Why are you unhappy with DRM. Also talk about market share and revenue rather than market ranks and dont generalize from a small market segment to explain the whole market.

Re: RIP Milton Friedman

Noel Le — Fri, 17 Nov 2006 01:24:41 -0000

Good podcast.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Fri, 17 Nov 2006 12:41:52 -0000

Charles, I welcome a *legal* DRM-free market. That will push DRM firms to lower prices, and provide more value to consumers. Thats fine with me. But let the market sort that out.

Technology is "ideology neutral," granted it represents "freedom" or anything else by how the market values it. Lets not assign technology subjective ideological values and bypass the market's decisions.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Sat, 18 Nov 2006 17:58:39 -0000

Charles, we are in fact probably close together on DRM, however I see a DRM-lite market as a balancing not a displaing reaction to the current DRM landscape. The arguments for an inevitable DRM-lite landscape from Tim Lee and X above don't say how DRM will be deposed, just why it *should.*

X, to address some of your points. I've been busy, so I haven't been replying in detail.

The majority of songs played on the iPod are MP3 formats, but Apple captures the value of its MP3 compataibility by excluding Apple DRM schemes. DRM is important to the iPod because of this.

Also, I believe Braden Cox's insight on your CD analogy is fundementally right. You even prove the importance of DRM for allowing price discrimmination and scaled offerings by saying that folks don't want to buy entire CDs. With DRM, producers can offer and price at smaller units of goods (songs rather than CDs). Without DRM, producers can only offer all or nothing.

...suppose in 5 years someone finally, definitively, kicks the iPod's butt and creates a player far superior on every dimension. All of a sudden there are going to be some very, very unhappy customers who realize that All Their Songs Are Belong To Apple.

No, nobody's songs belong to Apple. How do you gather this X. Even if songs did "belong" to Apple, the party that beats Apple out of the market should address backwards compatibility to lower switching costs for consumers (which is the only near term way I see Apple losing the music player war).

IPRs are PRECISELY prohibitive arrangements that grant market power--if they weren't, nobody would WANT one. ... IPRs, and the DMCA through DRM, restrict competition.

Not so fast X:) Parties seek IPRs to obtain market exclusivity, but competitors are restricted from distributing copies of the copyright/patent, not goods that legitimately compete with it. Also, IPRs do not automatically confer market power. Just by obtaining a copyright or patent, a party does not exclude competition for the product or services market. See my citations to Profs Edmund Kitch and Mark Lemley, which address your concerns.

Re: Nice Operating System You’ve Got There, It Would Be a Shame if Anything Happened to It

Noel Le — Sat, 18 Nov 2006 18:11:55 -0000

First, its up to the courts and USPTO to decide whether Linux infringes MSFT's patents.

Second, I agree that MSFT should point out what specific patents are infringed. When and how this is resolvd with FOSS distros will take its course, so lets not immediately assume that MSFT won't work at resolving the issues with Red Hat, and other companies, after Ballmer's statements.

Ballmer seems to be implying that, in effect, Red Hat and other Linux distros need to pay Microsoft for the privilege of participating in the operating system market. It's hard to see how giving Microsoft the ability to extort money from their competitors promotes the progress of science and the useful arts.

Third, no, Ballmer is not saying that others are prohibited from competing in the OS market. For once, Linux would only have to scrub out infringing code. Second, Ballmer is not saying all of Linux infringes. By the way Tim, this is one of the more unconsidered statements you've made.

Fourth, please explain, why should FOSS be privileged beyond the rest of commercial industry that must comply with patent law. In the name of freedom? Would you also argue that developers at IBM and HP should be able to take their code to the next company they work for, as this will increase their freedom?

Re: Reporting on DRM Accurately

Noel Le — Sat, 18 Nov 2006 18:18:10 -0000

Tim, you know better than to talk about DRM and piracy without mentioning the DMCA. Arguments citing the technological limitations of DRM as basis for its market distortion merely reiterate the justification for the DMCA's anticircumvention provision.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Sun, 19 Nov 2006 11:16:44 -0000

Tim, that has been my position in every writing you've sse me do on reverse engineering and fair use.

Re: My DRM Agnosticism & Indifference toward Media Format Compatibility

Noel Le — Sun, 19 Nov 2006 13:06:58 -0000

Tim, I don't see how Streambox supports your argument, or is inconsistent with mine. Streambox figured out how to achieve interop with RealPlayer's network connections but it also enabled users to make illegal copies of content from the Real Network server.

From what I've gathered, you can look at legal circumvention this way: 1)does the act of reverse engineering for interop pose infringement. I believe courts are somewhat lax on this prong, they tend to be or rigid on the next, which is, 2)does the interoperable product infringe or defeat the purpose of the DRM scheme. The purpose of DRM can be seen as preventing unauthorized copying. Streambox fell to the second of these, as did BnetD.

Re: Nice Operating System You’ve Got There, It Would Be a Shame if Anything Happened to It

Noel Le — Sun, 19 Nov 2006 13:55:55 -0000

Tim, have you thought about how patent law may affect and be addressed, differently, by individual FOSS developers, firms like Red Hat and other quasi-entities in the FOSS industry.

Many FOSS companies now scrub any code they release, and offer IP indemnification. Quasi-commercial FOSS entities like SourceForge and Samba that may not have resources can find some solace in third party FOSS legal groups. Individual developers, unless they distribute infringing code (granted I'm not yet sure at what point liability is incurred), would not be prowled on by IP firms. It seems like the patent storm clouds aren't as bad as you paint them Tim.

Re: Software Patent of the Week: Designing a Rational Patent System

Noel Le — Sun, 19 Nov 2006 16:25:57 -0000

If it's simply the case that you want money in exchange, well, take your work to a market and sell it.

Thanks Crosbie. I never thought I'd see such a ringing endorsement of software patents on TLF:)

In any case, the consistent theme in Tim Lee's weekly software patent series is vague claim construction, which Tim ties to the issue of patent scope and the value of the patent system. Tim draws broad policy generalizations from this approach (to abolish software patents); thereby rounding out a process of argument that I don't think even EFF or PK would adopt in their positions against software patents. As much as I disagree with these entities, I respect them as their arguments can be expected to hold at least some water.

Even Professor Carl Shapiro, a persistent patent critic, suggests that evaluating patents should look beyond their claim construction. Tim, are you intent on refuting Professor Shapiro, who is someone that patent critiques should cite more often.

In any case, there are several ways in which patent policy can be improved. But software patent critics seldom talk about patent reform because its easier to simply argue for abolishing software patents, and they don't like to see patent disputes go to court even though some cases may set precedent to help the patent system. At least software patent critiques should consider how existing doctrines can help software patents, such as limiting a patent's scope by comparing its technical disclosure and claim.

Re: Nice Operating System You’ve Got There, It Would Be a Shame if Anything Happened to It

Noel Le — Sun, 19 Nov 2006 20:35:15 -0000

Mr. E, now that you've repudiated the work of Thomas Jeffer, our first patent administrator, I'm not sure why you're asking to me read his lasting legacy in the American economy.

Your point raises several issues though. I'll just stick with one. How much is the patent system holding back FOSS? Thats the question we're all getting at right.

If patents unreasonably raise the cost of production/sustainment for an important industrial sector, I would switch a lot of my views. But I don't think thats happening.

Re: Broken Windows and Copyrights

Noel Le — Mon, 20 Nov 2006 11:24:22 -0000

Interesting blog XT:)

So tell me Tim Lee and XT, what do you folks think of the US venture capital system. Is it a waste of money. Should all the capital flowing from VCs be diverted elsewhere besides commercial firms. How should profitable companies (who often act as VCs themselves) (re)use their revenue.

Also, XT, did you catch my point about the iPod and DRM. Although it plays MP3 files, the iPod is successful because it excludes non-Apple DRM. This probably marks the difference in success between the iPod and your usual MP3 player. W/o that kind of exclusivity enabled by DRM and the DMCA, seriously, why would Apple invest in creating the iPod and its peripheral products.

Re: The DMCA in the American

Noel Le — Mon, 20 Nov 2006 11:26:31 -0000

Doesn't DVD John disprove your entire article.

Re: The DMCA in the American

Noel Le — Mon, 20 Nov 2006 11:43:24 -0000

Well, I don't want to see DVD Jon get sued, but I believe he has talked to Apple, who probably would not succeed in court anyhow.

It doesn't matter what Apple thinks about the DMCA, it matters how the courts apply the DMCA.

To be honest, I think you're too pessimistic.

Re: Broken Windows and Copyrights

Noel Le — Mon, 20 Nov 2006 11:45:34 -0000

Its related to XT's blog, where he talks about how capital is not necessary for innovation. One of the tenets of our current IP regime is that copyrights/patents help induce capital investment and appropriation. If capital is not necessary, neither are IPRs.

Re: The DMCA in the American

Noel Le — Mon, 20 Nov 2006 12:48:10 -0000

Hmmm. Its not quite right to judge the DMCA b/c "no... defendent has ever sucecssfully invoked the reverse engineering exemption."

For one, reverse engineering happens *legally* every day.

Second, in the cases you've pointed out to me, the defendent successfully reverse engineered a product and achieved interoperability, but then failed int he second prong of the DMCA circumvention test: they distributed either an infringing product or one that enabled users to infringe.

There is logic behind DMCA decisions. Reverse engineering. If you look at their reasoning, rather than outcome, you'd see that its not the DMCA preventing reverse engineering, but folks who do a half finished job (achieving interop but not making sure the final technology is not infringing).

Re: Broken Windows and Copyrights

Noel Le — Mon, 20 Nov 2006 13:02:19 -0000

Steve, how would you explain the iPod's success vs MP3 players then.

Re: Broken Windows and Copyrights

Noel Le — Mon, 20 Nov 2006 13:54:01 -0000

Steve, its a bit complicated, but if you're a man who needs causation, you know that its often hard to pin down in the technology industry.

iTunes has a couple more deals with the Studios than other music services. Those studios signed with Apple b/c of DRM agreements. iTunes, while not a big profit maker for Apple, induces folks to get the iPod.

Granted that most songs on the average iPod are not bought from iTunes, the fact that iTunes offers many labels/tracks not available many places elsewhere, which can only be played on the iPod, is enough of a case for DRM.

I should have clarified this, but when you talk about DRM and Apple, its probably important to mention both the iPod and iTunes.

Re: Broken Windows and Copyrights

Noel Le — Mon, 20 Nov 2006 15:15:20 -0000

XT, the iPod is in a way an MP3 player, my distinction above was meant to call out the difference between the iPod and MP3 competitors: Apple's DRM.

It really doesn't matter the small percentage of songs from iTunes played on the iPod. Its more important that iTunes gives near exclusive offerings that other services don't. And you know that iTunes will only play on the iPod (at least currently). This ads enough value to the iPod so that MP3 music owners will buy it rather than other players.

We agree that Apple is really tapping 2 markets: the market for its iTunes store, and the market for MP3 songs. The first, which deals with DRM:), makes the second more valuable. By buying an iPod, MP3 users get a player that will also give them access to exclusive offerings.

Re: The Community Shrugged

Noel Le — Tue, 21 Nov 2006 00:34:00 -0000

Tim, do you read the GPL as an isolationist doctrine, meaning that technologies and business that leverage it can never work with IP firms.

I don't think you're describing Galt's Gulch with the GPL and its community. You're talking about pouting FOSS companies that left outside the big tent.

Re: The DMCA in the American

Noel Le — Tue, 21 Nov 2006 01:31:23 -0000

Yes, apparently, thats what DVD John did.

As far as I see, you can distribute software that enables interoperability, but if the software infringes or strips the DRM from stopping unauthorized copying, thats where you get nailed.

Re: The Community Shrugged

Noel Le — Tue, 21 Nov 2006 08:13:42 -0000

DO you mean "over other GPL licensors/licensees with respect to patents." Just trying to clarify.

Re: The Community Shrugged

Noel Le — Tue, 21 Nov 2006 09:02:31 -0000

Well, I read that section as I just re-stated to you. The difference between "GPL licensors/licensors" and simply "third parties" is pretty big. If you hold the latter accountable for the goals of the GPL, then you're implicating those who never even signed on to the license.

Re: The Community Shrugged

Noel Le — Tue, 21 Nov 2006 10:00:01 -0000

Tim, I believe its in the interest of Novell's customers, as well as developers, that the deal w/ MSFT was signed.

The GPL is a very inflexible license. FOSS supporters talk about interoperability, and the need for more legal certainty in FOSS development, but they fall at their own swords when it comes to any practical solution.

If you're out of the big tent, don't complain that you *choose* to be left in the rain.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Noel Le — Tue, 21 Nov 2006 10:25:24 -0000

First, I don't know a single person who believes intellectual property is akin to real property. There are some similarities, but the fact that its useful to describe intellectual property w/ examples from real property probably causes more confusion than is necessary.

Second, look at the theories behind intellectual property to distinqiuish it with real property: tragedy of the commons, prospect theory, the problem of public goods, etc. These have little to do with the basis for real property (w/ the possible exception of prospect theory, but it is an *intellectual property theory* b/c it proposes specific policy recommendaitons for patents).

Re: The Community Shrugged

Noel Le — Tue, 21 Nov 2006 12:19:55 -0000

Don, that just tells me that Red Hat should not be calling the MSFT deal an "innovation tax" and that other Linux distros should get practical.

As for developers, I don't see the deal affecting them that much; (someone clarify this) but as I understand it, a developer would be giving more value to consumers of Novell than those of other Linux entities if they contribute to multiple distros. If anything, the deal gives developers more options by which to release their work.

Re: Why I Don’t Say “Intellectual Property” (and You Shouldn’t Either)

Noel Le — Tue, 21 Nov 2006 13:50:53 -0000

Tim, you're doing fine on your own. Please don't conjure up Stallman...:)

Re: Free Software Firms as Intermediaries

Noel Le — Wed, 22 Nov 2006 14:36:55 -0000

The FOSS community would do well to talk with young programmers in the industry who soon realize that business will go on without them, and that someone just as good or better always comes along. If a few developers get mad, no big deal.

Re: Linux, Commercialism, and Community Norms

Noel Le — Fri, 24 Nov 2006 10:41:01 -0000

Tim, Don's observation is fundementally correct. You don't want the GPL or its community "polluted" by having anything to do with commercial activity.

Your dislike of the commercial industry is very apparent. Reading over your writings, one gets the impression that the industry innovates and generates economic wealth at suboptimal levels. And rather than trying to help the industry, you want to hand it the final nail in the coffin and take it apart:)

You do criticize every regulatory and economic aspect of the commercial industry in your support of the GPL (and FOSS more generally). You've called Microsoft an extortionist, want to see the demise of the "Hollywood Studios," propose that the extinction of commercial firms is good for consumer welfare, and in one situation you even set out on a completely random attack of another think tank's integrity just because you didn't like its IP report.

Sounds anti-commercial to me.

Re: Linux, Commercialism, and Community Norms

Noel Le — Sat, 25 Nov 2006 12:01:37 -0000

OK, Tim, if I mis-represented your views, I apologize. But still, based on those instances I noted, one does get the impression you don't like the commercial industry.

Re: Linux, Commercialism, and Community Norms

Noel Le — Mon, 27 Nov 2006 10:50:50 -0000

Luis, the perceived "contradiction" in FOSS developers finding reward in a commercial position isn't that significant. The perception that there may be some kind of contradiction arises from the fact that FOSS and commercial development (often) recommend contrasting policy positions. But is the FOSS developer who goes from volunteering to a paid position writing policy or is he writing computer code? I would not call somebody like that a hypocrite, ideologicaly conflicted or anything else. He's just going to the next step in his careers, and is not renouncing nor belittling the FOSS movement by doing whats good for him.

Take a look at this review I wrote at IPcentral. Its about a recent presentation at UT Austin where the scholars talk about how FOSS and IP revenue streams within firms don't suggest internal conflict on policy positions on software patents. Firms merely see leveraging dual business models as profiting off different parts of the value chain. Similarly, a developer who gets rewarded by his FOSS contributions with a commercial job is merely going to the next phase of his career.

Re: They Were for Cartels before They Were against Them

Noel Le — Thu, 30 Nov 2006 12:26:49 -0000

Tim, I see where this post is going. But recall your recent discussions with Jim Haper on the differences between real property and intellectual property. One of the important implications for policy discourse is to know which form of property you're talking about, keeping in mind that often you'll use examples from one kind to illustrate the other. Where this is most important relates to the term "monopoly." Sure, you can say that monopolies are govt created, have effects on competition and cite other similarities between monopolies in real and intellectual property, but the economic similiarties are few (does monopoly reduce competition, does monopoly lead to suboptimal levels of innovation, how do you define the extent of a monopoly).

On the other hand, if you don't like things created by the govt, then perhaps you disagree with the patent case law handed to society by the CAFC, or the Defense Department's DARPA wing which initiated a lot of basic research leading up to our modern Internet.

Re: They Were for Cartels before They Were against Them

Noel Le — Thu, 30 Nov 2006 21:50:36 -0000

I was mainly commenting on the phrase "monopolistic behaviour" used by TechDirt, but yes, youre right, I dId have a knee-Jerk reaction. Misuse of the term monopoly bothers me to no end.

Re: The Wrong Kind of Creativity

Noel Le — Fri, 01 Dec 2006 14:14:33 -0000

...obvious that this patent did nothing to advance the progress of science and the useful arts.

Tim, patents, by themselves, never do anything for the progress of sciences and useful arts. Its the incentive they give innovators to invest in and commercialize inventions that achieves this goal.

Re: The Wrong Kind of Creativity

Noel Le — Fri, 01 Dec 2006 15:06:30 -0000

The exclusivity provided by patents enable both ex ante and ex post recoupment of invention/commercialization costs. By saying that an invention would not have been created absent patent protection only touches on one aim, and one benefit, of the patent system.

Who would bother investing capital to commercialize and improve on an innovation if they did not have some kind of limited exclusivity. Sure, you can talk about 'non-monetary" incentives, but that does not help the firm trying to pull in revenue. You can talk about other value-add beyond the technology, but that would ignore realities like the revenue cap that plagues FOSS distros who need to struggle to differentiate themselves outside the source code.

Again, its hard to generalize from one patent to the entire software patent system. I haven't seen any evidence that software patents have lower levels of cross-citation than other kinds of patents; such evidence would indicate that software patents are generlaly of lower quality than other kinds of patents (pharma, semiconductor, etc).

Re: The Wrong Kind of Creativity

Noel Le — Fri, 01 Dec 2006 15:26:24 -0000

Steve, I recognize there are other forms of incentives, but patents are a form (although not the only one) of incentive.

I would not call making money a narrow perspective. Afterall, the American digital economy, the envy of the world, is based heavily on our venture capital and patent systemm, which protect capital investments of profit seeking firms.

Re: The Wrong Kind of Creativity

Noel Le — Sat, 02 Dec 2006 16:08:02 -0000

Tim if other firms can free ride an innovator may risk less capital to improve a product. Its hard arguing with you on this though b/c you dont think innovation requires capital, and see the demise of commercial industry as good for consumers; at the same time you criticize software patents for purportedly causing the very distopia you advocate.

Re: The Wrong Kind of Creativity

Noel Le — Sun, 03 Dec 2006 16:07:06 -0000

Lewis, I wasn't saying that VC funds would fold without patents. In fact, given the time it takes to receive a patent, new firms often get VC money before the obtain any patents (if at all).

My point about VC is that its a distinctive trait of the American innovation economy, and one that does a lot to explain how profit motive underpins the success of our Internet economy.

You raise a good point though- that firms can leverage other value capture other than patents. The innovation economy will not collapse if we don't have software patents. But patents do perform their role in incenting R&D; activity and commercialization beyond levels that would occur absent patent protection. Further, patents are preferable to forms of exclusivity such as trade secrets and copyright, so they are important.

And remember, its the incentive patents give that promotes the progress of the sciences and arts, not the patent itself, as Tim seems to understand it.

Re: The Journal Fails to Do Its Homework

Noel Le — Mon, 04 Dec 2006 01:39:55 -0000

Doug, check out the works of Prof. Adam Mossoff, who has written on the history of the term "intellectual property." Surprisingly, the term appeared in SCOTUS decisions very early on in patent/copyright jurisprudence.

Re: The Journal Fails to Do Its Homework

Noel Le — Mon, 04 Dec 2006 11:57:29 -0000

Sorry, I meant Prof Justin Hughes. Check out part III of this paper: Hughes, Justin, "Copyright and Incomplete Historiographies: Of Piracy, Propertization, and Thomas Jefferson" . Southern California Law Review, Forthcoming Available at SSRN: http://ssrn.com/abstract=934869.

Re: The Journal Fails to Do Its Homework

Noel Le — Mon, 04 Dec 2006 13:28:08 -0000

Yes, context would be great, but Prof Hughes uses the 1845 and 1873 SCOTUS decisions, as well as other early incidents of the term "intellectual property," to show that it is not a *modern* construct resulting from the "propertization" movement that copyright/patent critics cite as arising over the past 20 years.

Note that Professor Hughes does a great job of showing how a group of scholars (some of whom he no doubt admires greatly) cite questionable works in their assertions that "intellectual property" is a new term.

Another important item from this paper is how it traces early use of the term "piracy," which copyright critics often criticize as a construct of Hollywood. Prof Hughes shows that "piracy," like "intellectual property" is not a result of the purported propertization movement, and that these terms were not introduced recently to distort or misrepresent the substantive issues.

Re: The Journal Fails to Do Its Homework

Noel Le — Mon, 04 Dec 2006 14:13:13 -0000

The 1845 SCOTUS decision is one Hughes cites Prof Lemley as acknowledging re historical use of "intellectual property."

Misunderstanding of "intellectual property" stems from the "property" term. Correct? Thus, Prof Hughes' findings on "literary property," "industrial property," and other forms of "property" to signify copyrights and patents does add to his point about the purported modern propertization movement.

You are right that there is a J-curve in use of "intellectual property" though, but I believe Prof Hughes acknowledges this.

Re: Inside the Windows Bureaucracy

Noel Le — Tue, 05 Dec 2006 16:09:56 -0000

Anyways, Tim, you should consider not only "efficiency" but magnitude of profits. Sure, FOSS products need to recoup less to pull a profit, but that says nothing. Further, decentralization is a bit vague. Microsoft involves subsidiaries around the world in developing Windows, and contracts with many third party developers. Would you call that decentralized. Also, Microsoft, like any business, works on many projects concurrently. If a project intended for Windows is cut from the final release, Microsoft will recycle that work for the next version or for another product. Finally, every fiscal year business execs go through a round of slash/burn- cutting off unnecessary ops costs and overhead. If you think Microsoft is not efficient or non-evolving, then why isn't Linux the leading OS despite being around just as long as Windows.

I'm not predicting what OS will be dominent in a couple years, but based on your post Tim, you provide little argument to any such prediction.

On the other hand, I could care less what OS wins. Whoever charges me less (including service fees:) for a better product is who I'll go to.

Re: The Technology Liberation Front » Archive » Conservative Justices for Patent Reform

Noel Le — Thu, 07 Dec 2006 19:53:19 -0000

How exactly is the Supreme Court unahappy with the Federal Circuit?

Re: The Technology Liberation Front » Archive » Conservative Justices for Patent Reform

Noel Le — Thu, 07 Dec 2006 20:07:44 -0000

Hmmm. I was wondering what exactly Scalied meant. What is the Federal Circuit polishing up, and in what cases is this occuring?

I read your exceprts more as the Supreme Court criticizing how some folks (I call them trolls, but evidently the Supremes would include patent lawyers in the group) have learned to "game" the patent system by taking advantage of the way the patent non-obvious doctrine has been shaped by the Federal Circuit.

In any case, I have to look over the whole transcript, which I don't have time for right now.

Re: Carr on the Failure of DRM

Noel Le — Thu, 07 Dec 2006 23:13:49 -0000

Tim, I dont believe you understand Carr's argument. You proceed to beat up DRM on the very consideration Carr calls secondary to DRM, and that leads you into a discussion on policy reform that is obviated by the very market influences that may reduce the proliferation of DRM.

Re: Carr on the Failure of DRM

Noel Le — Fri, 08 Dec 2006 10:13:50 -0000

Doug, notice that Carr cites *profit incentive* possibly bringing more MP3s to the market. That sounds like something a former editor of the Harvard Business Review would write about, and something I'm hospitable to. Even though I'm a supporter of DRM, there are times when not leveraging it makes the most business sense.

I did find several points in Carr's article worth elaborating on; that is, how MP3s are a balance towards DRM the same way that FOSS is to software patents, and the public domain is to biotech gene patents. See here: MP3 as a balance to DRM

Re: Carr on the Failure of DRM

Noel Le — Fri, 08 Dec 2006 11:36:54 -0000

Tim, the argument that Carr makes is much more understandable than these cries for "freedom" that simply come off as rants, including your tortured attempts at proposing new business models and then defending them by the fact that they are virtuous rather than profitable.

How do you measure "freedom?" You can't. "Freedom" campaign slogans are unfalsifiable, irrefutable, immeasureable and unamenable to any objective standard. Profit, however, is different. Because Carr speaks in this language, his arguments supporting the value of MP3s are significantly more persuasive than others I've heard.

You still don't understand Carr's argument Tim. He agrees little with you except for the fact that MP3s are still part of the industry business model.

Carr is saying that the use of DRM by the iPod is pushing some companies to use MP3. Carr is not arguing that DRM makes no business sense. He is not saying that MP3s would be valuable absent this phenomenon caused by the iPod. Nowhere does Carr imply that all songs will go MP3. If you disagreement, then state exactly how you and Carr align.

Re: Carr on the Failure of DRM

Noel Le — Fri, 08 Dec 2006 12:13:04 -0000

Tim, its helpful to talk about freedom. But at least admit you're talking about it, rather than disguising your argument as something else. So you come up with these flipsy business models without DRM. And you say they increase your freedom. Then you argue that businesses will be more virtuous for increasing your freedom. But tell me Tim, is increasing your freedom within the incentive of creators? When it helps their profits, right. But you don't even consider others' incentives or profits. When talking about what others should do, think of their incentives, or some objective standard, not your own interest- thats a weird form of codependency.

Re: Carr on the Failure of DRM

Noel Le — Fri, 08 Dec 2006 13:48:46 -0000

Actually, Charles you raise a good point. Many labels want Apple to raise the price of songs on iTunes. Knowing that piracy is inevitable, but wanting to pull more profit than their current deal with Apple, some lables have considered releasing their songs on MP3 with the added vulnerability for copying tacked onto the price.

Piracy is here to stay Charles. We all know that. But simply because it occurs, does not mean that attempts to curb it should be abandoned. Mechanisms that allow artists and firms to recoup some money are still important.

Re: Carr on the Failure of DRM

Noel Le — Fri, 08 Dec 2006 16:38:34 -0000

Doug, did you look at Carr's article. He argued that the iPod's DRM model may cause services other than iTunes to revert to MP3. Thus, the value of MP3 is that it offers the opportunity for services to sell songs that can play on the iPod. I question some of this assertion, as I state in my review on IPcentral.

Carr's reasoning is interesting, and I have no normative argument on whether MP3s are good in this situation. But as a supporter of DRM, I am sympathetic to the increased use of MP3 if there is economic justification, as Carr argues may be the case.

I disagree with your depiction of DRM. First, as Carr points out, DRM is a business strategy. Second, curbing piracy does not need to stop all piracy. If you don't think DRM is effective at all, then how do you explain the annual revenue of iTunes. Users could have gotten those songs off file-shares rather than buying them.

Re: Carr on the Failure of DRM

Noel Le — Sun, 10 Dec 2006 13:10:29 -0000

Doug, if you want to side-step my example of iTunes and how DRM has lead to legitimate music sales, then fine. Charles provided a better response anyways. I guess suffering from lack of freedom, as you claim you are, has lead you into a rant of sorts:)

Charles, again you raise some good points. I don't see why iTunes would sell non-DRMd songs though unless Apple finds itself in the position that it wants iTunes songs on non-iPod players.

Steve, its a bit ridiculous for von Lohmann to cite Yahoo!'s call for the end of DRM. Yahoo! is looking out for its own interest, not that of content owners. Its like Dell and other computer makers calling for Microsoft to slash the price of Windows in half.

Re: Software Patent of the Week: A Poster Child for KSR

Noel Le — Sun, 10 Dec 2006 13:15:40 -0000

I still think technical disclosure should be used by courts and the USPTO to limit the scope of a patent, as to measure its novelty/obviousness.

Carmen raises a good point. There are few problems isolated to software patents. They exists with patents generally, with various issues more pronounced for software. Thus, the solution is to addresses those issues, rather than eliminating software patents entirely since they do provide a lot of benefit to inventors.

Re: Carr on the Failure of DRM

Noel Le — Sun, 10 Dec 2006 18:48:07 -0000

Steve,

Yes, content owners protect their interests. My statement about Yahoo! is that its protecting its own as well, and thus Yahoo!'s position on DRM should not be taken as a disinterested view. EFF is not necessarily misleading, but its citation of Yahoo! may be misinterpreted.

Steve, you raise the issue of fair use, which I think is very important. I'm a strong supporters of DRM and the DMCA, but most of my writings on fair use probably are not far from yours. I will say though that if fair use is the issue, then talk about fair use, not "freedom" or other swooshy concepts that are used to evade the substantive issues.

You have to be more specific about "unethical" principals on the part of content owners, but I will say that if you don't agree with someone's business practices, don't buy their product and don't ask to get it on your own terms.

Re: Tech Policy as a Case Study in “Liberaltarianism”

Noel Le — Mon, 11 Dec 2006 01:17:24 -0000

I'm generally skeptical about "applying" a classical thinker's work to current technology policy unless their arguments are immediately relevant. Coase is obviously pertinent to many discussions. But I've seen Bastiat, Hayek, Mises, Rand and even Thomas Jefferson analyzed in ways that neither do them justice nor inform current discourse. These generalizations on TLF often fail to address an important point, namely-couldn't any of these figures' arguments also be interpreted to support IPRs? And why do IPR critics fail to cite today's law and economics scholars who actually support their views? I often recommend books and articles on TLF that challenge my views simply because I believe current IP scholarship is more relevant to tech policy than revisionist history.

Re: Software Patent of the Week: A Poster Child for KSR

Noel Le — Mon, 11 Dec 2006 12:15:21 -0000

Tim, James-

I don't believe IBM *created* the clone industry as much as it *encouraged* it after seeing the potential for licensing revenue from its BIOS. Of course, firms were later able to reverse engineer IBMs BIOS, and eventually even that was not necessary.

I see Tim bringing his paper to attention, and of course, I disagree with his pessimistic position on the DMCA. Nevermind that it talks about innovations *that might not have happened* but ignores the reality that they actually did, and overlooks the fact that today's technology industry is vibrant and innovative rather than the crumbling industry that he predicts; the main point that readers should look at are his points on reverse engineering which I comment on here: Reverse Engineering

Re: Moglen on the Moral Significance of Free Software

Noel Le — Mon, 11 Dec 2006 13:04:10 -0000

Adam, I'm not sure if that helps. Tim is farther left than EFF, or any other *leftists* groups in tech policy.

I've followed folks like von Loehman and Moglen for several years. They're talented guys, and their organizations have long been a part of the techn policy landscape. Still, neither EFF, nor even the FSF, are as left as TLF can be at times.

Re: Moglen on the Moral Significance of Free Software

Noel Le — Mon, 11 Dec 2006 15:04:55 -0000

Steve, you raise a good point about collaboration. I will note that collaboration occurs in the IP and *free* community.

Eric, yes, I do often take issue with stuff on TLF (not TLF in general, and I do appreciate some of the writers on here like Adam, Braden and Hance).

Since I've seen citations to work by me and my friends on TLF that I would call mischaracterizations, and the ensuing discussions ad hominem rants, I'll come here to discuss the issues. There is probably little guidance or accountability from those informed about tech policy supporting some of the work I disagree with.

Re: Moglen on the Moral Significance of Free Software

Noel Le — Mon, 11 Dec 2006 18:58:53 -0000

Tim, Moglen and Stallman are terribly concerned with controlling how others about and speak. And their only standard is some fuzzy notion of community that is decided by Stallman's antisocial tendancies. Also tell us Tim, how does the *IP* business model not reflect decentralization (of small specialty firms) who cooperate (through licensing and development collaboration). And, are your views against IP concerned about innovation. It seems like you see decentralization and non-coercion as goods in themselves with no regard to economic growth, technologial progress nor anything else.

Re: Moglen on the Moral Significance of Free Software

Noel Le — Mon, 11 Dec 2006 19:50:36 -0000

XT, my point was that more decentralization is not necessary good. Tim talks about decentralization, but somehow he only ocnsiders the most extreme form as the preferable state of things. So Tim, what do you consider factors that would cause us to consider whether more/less decentralization as good. Obviously, you don't, as you push fanatically for decentralizatoin as a good in itself.

Also, Tim, what does it tell you that the FSF would have to resort to community pressure to enforce the GPL. Who decides whats right Stallman and Moglen? You advocate the views of 3 people over American legal standards?

I'm skeptical of this new "social pressure" thing. Its a bit different from "market pressure" because usually a bunch of zealots have to paint the market as ineffective and unknowledgeable to make their point. For instance, Tim writes of users losing their *freedom* with DRM. That doesn't seem to be stopping folks from buying the iPod nor songs from iTunes. Are these consumers suffering from loss of freedom now that they'vd bought the tech products of choice?

Re: Moglen on the Moral Significance of Free Software

Noel Le — Mon, 11 Dec 2006 21:00:25 -0000

Tim, when you see "decentralization" don't you mean the most extreme form of it, whether or not you're talking about free software? You're right, I don't understand how you can say that free and proprietary software can exist side by side, when you criticize every effort of IP firms to work with FOSS firms. What part of your own arguments on decentralization and IP do you not understand Tim.

Re: Teleflex Article

Noel Le — Tue, 12 Dec 2006 00:56:47 -0000

Nice article.

Tim's statement that the Federal Circuit has *effectively emasculating the obviousness rule* can be expanded on. While the Circuit has retained a standard that many claim is consistently applied, it deprives examiners and courts of the ability to consider whether a patent is actually obvious even in the most basic sense of the term.

Tim, what do you mean by this:

NTP never alleged that RIM's BlackBerry technology was in any way derived from the designs disclosed in NTP's patents. Rather, NTP claimed that the mere fact that BlackBerrys have the combination of features described in NTP's patentsÃÂ¢Ã¢?Â¬Ã¢?Âessentially, the ability to retrieve email via a wireless connectionÃÂ¢Ã¢?Â¬Ã¢?Âwas enough to trigger liability.

First, "derivation" seems more appropriate to copyright than patents when talking about infringement. Patent holders never (as far as I know) claim an infringing product is derived. If there was an independent invention defense in patent law, then I could see how a patent holder would claim that another product is deriative. Second, NTP's claim was sound as RIM's product matched the specs laid out in its patents; the issue of those patents' obviousness, scope and validity is another question. Thus, to say that NTP "merely" accused RIM of infringing its patents is not quite right.

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 01:00:00 -0000

Tim, did you really write this? First, you've never worked in the software industry. Second, you call for the demise of the industry at the same time that you say software patents are leading to that goal. Third, you take code too personally. Let it go. Just because you want to tinker does not mean that your tinkering will contribute to the American economy:):):)

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 01:05:58 -0000

I'm curious Tim, do your views represent those of others at the Show Me Institute or Cato?

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 01:23:19 -0000

Mike,

I would not say that those who have worked in the software industry "all agree" that software patents are bad. Email me personally, but that is definitely not the case.

We should have a discussion, as I've read some of your material since we last *argued*.

My statement about Tim arguing for the demise of the software industry stems from this post: http://www.techliberation.com/archives/041119.php.

BTW, I liked Joe's post this week about Apple and iTunes.

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 10:00:58 -0000

Tim, while universities are outside the pure *profit* motive, whatever university you worked for probably has a technology transfer office that licenses patents with the industry.

I worked in the *for-profit* software industry; doing first public policy research, and then knowledge-management developmment. I'd probably try to do corporate development or business development if I went back to round out the policy-technology-business experience.

Yes, Tim, Red Hat is a part of the industry, but whenever you talk about Red Hat, you talk about its *virtues* or *ideology.* Actually, whenever you talk about any company, you talk about those things, thus its hard to decipher when you're actually trying to give concrete business analysis.

Lewis, what quote are you reading from.

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 11:31:07 -0000

I have several issues with Tim's position on software patents. First, he does not consider economic arguments or evidence. Second, he would only be amenable to arguments such as "do software patents increase the freedom to tinker." Third, he does not offer alternatives to software patents- granted there are many, but Tim does not balance their strengths/weaknesses with patents. Fourth, Tim does not consider the history nor transition in technological innovation. Fifth, Tim's priority is not innovation, nor commercial growth, but rather an ideology of "FOSS is good because it reflects (Tim's) libertarien values."

Notice that Tim uses the words "silly" or "preposterous" a lot, thereby not engaging fully in discourse over software patents. Tim declares that he's not seen any arguments that convince him of the need for software patents; but thats because he's not amenable to economic proof. In fact, Tim does not even consider persuasive economic arguments against software patents, b/c he's stuck on his own moral theory of software patents.

My point was not to question Tim's tech skills. Rather, I was emphasizing the fact that its odd he talks about the *industry* in terms of ideology and normative values. Those who've worked in the industry appreciate other aspects of software development.

As for why we need software patents (these are a few, I can send you articles supporting my positions):

1)to incent innovating activity that requires capital investment and risk.
2)to enable the decentralized "open" innovation model of the current industry, where firms can specialize and license for complementary technologies.
3)for firms to work on technologies without immediate applicability (basic R&D;) while retaining the ability to prospect and commercialize those technologies.
4)for firms to leverage more efficient means of inward/outward knowledge transfer through licensing.
5)and controversially, to raise barriers to entry so that only innovative and commercially viable inventions get into the market ecoystem. (kind of like political candidates needing a number of signatures to get on ballot)

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 17:48:48 -0000

The 5 arguments I outline support patents rather than copyrights for software b/c patents simply protect more types of innovations.

I didn't mention that patents do not allow independent invention, which is important. Also, that patents are harder to receive than copyrights (thats obvious) and finally patents terms are shorter than those for copyright.

Tim, who argues that copyrights work better for the software industry than patents. Aren't you the one trying to repeal the DMCA?

The fifth argument above relates to market entry and patents. I should have explained it more completely.

Re: But What Are Software Patents Good For?

Noel Le — Thu, 14 Dec 2006 19:18:47 -0000

Tim, in the software industry, there are programmers and then there are the actually *business people.* Even though programmers do the nitty-gritty work, and form the backbone of the industry, they don't drive it forward. Business folks do (although at companies like Apple and MSFT, execs tend ot be techies, at IBM I think their pure business). You can say that programmers think copyright is sufficient, but that says very little.

I"ll report on some academic articles in the next few weeks to spell out my point about patents rather than copyrights.

Re: Bill Gates Says DRM has “Huge Problems”

Noel Le — Thu, 14 Dec 2006 22:22:48 -0000

Gates is saying that DRM should be *improved* rather than jettisoned. The technologies and business models surrounding DRM are young, and they have to mature before they function optimally for both consumers and copyright holders. Personally, I think there should be more flexibility in DRM schemes.

Re: Do Small Companies Need Software Patents?

Noel Le — Fri, 15 Dec 2006 14:35:26 -0000

1) When did MSFT try to "copy" Google's technology.
2) Nice job. The assumption of your whole post is that proponents of software patents say they're essential in every business model. Thats not the case.
3) How do patents "guarantee a lock on a particular market?"
4) Don't you think having a patent will incent a company to continue investing in commercializing a technology? Otherwise, competitors will work around the patent, or figure out how to commodify the patent holder's revenue stream.

Re: Do Small Companies Need Software Patents?

Noel Le — Fri, 15 Dec 2006 14:46:58 -0000

One more point, Tim, for future reference, it would be great for you to show how software patents stifle or drive small companies out of the market. Here, you seem to say that these companies did fine without software patents, but nobody ever claimed they relied on software patents to begin with.

Re: Do Small Companies Need Software Patents?

Noel Le — Fri, 15 Dec 2006 15:26:06 -0000

Tim, so, Yahoo! and Microsoft want to compete with Google's search functions, but lets not say they are "copying" Goole. Perhaps they've reverse engineered Google to understand how it works, and seek comparable functions, but lets not use the word copy because that entails some IP-specific connotation.

Who assumes that IP is necessary for all innovation. I've told you so many times that is not my position, nor that of anybody I know of who comments on technology. Perhaps you're thinking of the pharma industry (by the way, a lot of support for *expanding* IPRs comes from the pharma, not the technology industry. Note the software industry consens, even by disparate groups like EFF, PFF and MSFT, in the KSR case.

I think you're main criticism of patents is how their hairbrained claim construction, lacking in technical merit and quality, lead to almost infinite scope that would cover an entire market. I don't believe any court has upheld such patents though.

Re: Do Small Companies Need Software Patents?

Noel Le — Fri, 15 Dec 2006 16:01:02 -0000

There are bogus software patents. Have I ever disagreed with this.

How would you describe RSA and other encryption patents.

By the way, take a look at "hindsight" bias, as described in PFF's KSR filings. Its too easy to look at a patent, and say its obvious or meritless.

I still think you're putting too much weight on claim construction. Have you ever sat through a patent licensing deal or negotiations. I think they talk about a bit more than just claim construction.

Re: Do Small Companies Need Software Patents?

Noel Le — Fri, 15 Dec 2006 17:18:35 -0000

Check this out: http://blog.searchenginewatch.com/blog/060711-2...

Re: Do Small Companies Need Software Patents?

Noel Le — Fri, 15 Dec 2006 17:51:58 -0000

I'll look them over too. I"m traveling over the next few weeks, so write about them all you want.

I still think you should combine case law with your patent of the week series: introduce the patent, give your usual critique, then show how a court (preferably the CAFC or SCOTUS) interprets the patent.

Re: Bill Gates Says DRM has “Huge Problems”

Noel Le — Fri, 15 Dec 2006 17:53:33 -0000

I wonder if there has been any effort by companies that leverage DRM to solicit feedback from customers on how to design optimal DRM systems that provide consumer experience more flexibility while preserving viable business models for the firm.

Re: Sohn on Fair Use in the Journal

Noel Le — Mon, 18 Dec 2006 13:23:52 -0000

Tim, nobody is saying that any promising new technology should be shut down because of questionable practices. That sounds like a doomsday scenario to me. If anything, any such technologies, if truly innovative, should be flexible and adaptive to consumer and legal concerns.

Your idea about putting barcodes on books is interesting, but this won't affect books already in exisence.

Re: Sohn on Fair Use in the Journal

Noel Le — Mon, 18 Dec 2006 13:57:37 -0000

Doug, I've stated this many times, but real property is used as an analogy for intellectual property. This is done because intellectual property is not only often abstract in what it covers, but many of the questions are new, and need to be simplified. Granted, there are obvious limitations to comparing real and intellectual property, but they are analogized to clarify points, not to draw emotional responses. Personally, I've stopped using such analogies unless necessary to communicate with readers.

I don't like to debate over the *meaning* of intellectual property too much. I've seen some good discussion on that issue here on TLF, but they don't show how misunderstanding of intellectual property distorts current discourse. Further, it does no good to brood over the meaning of intellectual property, and then trip over simple concepts like copyrights posing a barrier to entry, innovating technologies needing to adapt to legal regimes or the role of patents as that contributing to free markets rather than reflecting anarchistic views of perfectly free markets.

Re: Sohn on Fair Use in the Journal

Noel Le — Mon, 18 Dec 2006 14:13:46 -0000

Well, it looks like the one emotional response Patrick has caused is with you Mr Lay.

Sheeesh. Why is everybody in such a bad mood. Ahhh...

Re: Sohn on Fair Use in the Journal

Noel Le — Mon, 18 Dec 2006 17:19:23 -0000

I actually appreciate some of Google efforts with its Booksearch project- namely its willingness to engage in discourse on fair use, rather than sidestepping the real legal issues.

I swear though, Doug, you are in a bad mood.

Re: Sohn on Fair Use in the Journal

Noel Le — Mon, 18 Dec 2006 23:46:06 -0000

My dear Mr E, I recommend to you the writings of Thomas Jefferson, our third president and first patent administrator. His works shall demonstrate to you the importance of property rights in a democracy.

Re: The Technology Liberation Front » Archive » Criticizing Wikipedia Only Makes It Stronger

Noel Le — Thu, 21 Dec 2006 19:20:51 -0000

Richard, keep in mind that with leftist-Libertariens like Tim Lee, it doesn't matter how accurate, high quality, commercially valuable, technically progressed or useful something is; all they care about is whether something reflects their take on Libertarien values. Whether websites, online encyclopedias, business models or technical designs can, in and of themselves, reflect philophical values, at least for me, is dubious.

Re: Samba, Patents, and Interoperability

Noel Le — Mon, 25 Dec 2006 16:00:59 -0000

Tim, do thoughts like this really shape your policy thinking? Come on Tim, there are a lot of "what ifs" in life. This statement says several things you may not be aware of.

it would be unfortunate if Microsoft were able to use the patent system to restrict who may implement Microsoft-created protocols...

1)Tim implies that nobody should be restricted from implementing any MSFT protocols at all. His disagreement with the patent system leads him to act as if its not there.
2)Tim looks at the patent system in isolation, and separate from other business, technical and policy influences. Just b/c MSFT has patents on some technologies does not mean it will only pursue a shutdown of infringing work, in fact MSFT's recent patent policies have been to share rather than partake in trollish behaviour.
3)Tim has some weird notion of "efficiency" that follows a set of assumptions he often makes w/ tech policy. Tim assumes that because efficiency is a good thing, the more effiency the better, but Tim does not balance efficiency with other important things such as the end product. Also, Tim's notion of efficiency is that of an end-all goal, and at times seems to be arguing that competition itself is not efficient.
4) Of all the qualities Tim attributes to FOSS and all the criticisms he lends to firms like MSFT, why can't he explain exactly and in detail how MSFT is hampering FOSS with its patents, and neither does he address the fact that its FOSS' weaknesses and non-economic viability that limit it.

Re: Samba, Patents, and Interoperability

Noel Le — Tue, 26 Dec 2006 17:29:27 -0000

Tim, that link above is a bit broader than the current topic. Can you give a concise summary.

Also, Richard has a point that your argument about inefficiency doesn't really say much. Remember, innovation happens in markets, not vacuums. It tells us nothing if a market space is not perfectly efficient.

Again, you see interoperablity as an end-all goal. It still says nothing that some products may not interoperate with MSFT technologies.

Yes, technology has high network effects. Firms compete for markets, not within markets. Your ideals of perfect efficiency and perfect competition conflict with the very nature of the technology industries.

Re: Samba, Patents, and Interoperability

Noel Le — Tue, 26 Dec 2006 17:59:28 -0000

Tim, look up an interview with Bill Hilf from MSFT, where he explains that interoperability between MSFT and FOSS technologies can actually help MSFT's bottom line. Hence, MSFT has been working with some FOSS entities, and to my knowledge, has not gone after them with its patents.

Sure, MSFT *may* use its patents to try and deter interop but I doubt MSFT can entirely prevent others from making interoperable products either though legal or technological means. In other words, your patent argument in this post is a big *what if.*

I don't think we disagree that much on interop, but damn, stop being so pessimistic!!!

Re: What Was the Biggest Tech Policy Story of 2006?

Noel Le — Thu, 28 Dec 2006 15:52:35 -0000

It was a pretty big year for patent law, with eBay, RIM and KSR. There you have the presumption of validity, patent trolls, a judge who set precedent for how *not* to let USPTO re-examination take its course and the non-obvious standard. All you need now is to mix in some mystery, seduction and conspiracy to come out with a real life drama.

Re: Vaidhyanathan Hates “You”

Noel Le — Sat, 30 Dec 2006 15:54:43 -0000

Tim, Vaidhyanathan's main argument is that social production is not the *revolution* its hyped up to be, while you seem to be dubunking the argument (which Vaidhyanathan does not even make) that social production is not important or has no value.

Re: HD-DVD Copy Protection Cracked

Noel Le — Mon, 01 Jan 2007 11:21:30 -0000

Yes, DRM was not effective in stopping criminals here. Sounds like time for the DMCA to step in.

Re: HD-DVD Copy Protection Cracked

Noel Le — Mon, 01 Jan 2007 12:44:49 -0000

SteveR, what is the criminal activity on the part of corporations that you're talking about? I don't believe making non-interoperable products, and leveraging DRM, constitute criminal behaviour.

Preventing *fair use*? I'm not sure the fair use doctrine applies here. If you're talking about something broader, like lawful personal use, then please clarify.

By the way, corproations are not off the hook when it comes to the DMCA. They are as bound by it as you and I, consumers.

Looking back at Luis' posting, I'm actually not sure if the intent of the DRM was defeated, although it may have been cracked. Thus my comment about the DMCA may have been premature.

Re: Charlie Brown Needs to Bulk Up

Noel Le — Tue, 02 Jan 2007 22:25:50 -0000

***Frankly, I think the vast majority of Democrats in Congress are only vaguely aware that the "activists on the Net" even exist, and they have no idea what they want and why.***

Tim, thats why its important to talk about issues like fair use in level headed and *non-revolutionary* terms, so the discussion can at least be serious enough to inform real policy changes.

Doug, I don't know what you're talking about. The underpinning theories of IP are *economic* and specific to IP; although the tragedy of the commons is based on a real property analogy.

Re: The Technology Liberation Front » Archive » Mozilla Rakes It In

Noel Le — Wed, 03 Jan 2007 21:29:51 -0000

***I occasionally see critics of open source software complain that their lack of revenues proves that "the market" has rejected open source software.***

Well well, Mr E, we meet again.

Tim, my position is that FOSS is limited in its market viability due to the GPL license. I never said anything about FOSS not being profitable in general, nor have I said anything negative about licenses such as the BSD.

Re: There’s No Such Thing as Too Many Smart Workers

Noel Le — Fri, 05 Jan 2007 15:11:40 -0000

Tim, check out the NAS pubication: Building a Workforce for the Information Economy (2001). It talks about the importance of foreign workers in building an information economy thats highly complex and specialized;in particluar, the H1-B tech work visa.

On the one hand, I feel for American tech workers who have their jobs shipped overseas, or who cannot find work here. However, the benefits to the American economy of foreign talent is obvious.

Re: Where’s My Video Jukebox?

Noel Le — Wed, 10 Jan 2007 13:04:58 -0000

Enigma, how exactly does the DMCA affect the First Amend. I've heard some arguments, but not yours.

What does everyone propose we do with the DMCA? These criticisms I see are so general, but don't mention specific provisions. Repealing the DMCA seems overboard unless you disagree with every single provision... IMHO.

Re: Where’s My Video Jukebox?

Noel Le — Wed, 10 Jan 2007 13:26:45 -0000

Regarding 1201. Your argument indicates that you find 1201(f) inadequate. You may say that its vague, but your writings seem to imply that its bad for innovation because it is too narrow by not exempting violations of traditional copyright law (i.e. interoperable programs having too much in common with the orginal program) or not giving enough clear guidance on what its exempting from the rest of 1201 (i.e. defeating the purpose of DRM).

So why not expand 1201(f) to cover more ground rather than repeal the whole DMCA?

Re: Where’s My Video Jukebox?

Noel Le — Wed, 10 Jan 2007 13:56:46 -0000

I still think your policy recommendation over-reaches your goal. I'm as big of a supporter as reverse engineering as you are (and apparently so is Congress because they included 1201f), but somewhere our analysis diverges.

Re: iPatents?

Noel Le — Thu, 11 Jan 2007 11:19:19 -0000

Well, Tim, you patent *after* you invent, so its not quite right to say that an inventor would have produced the same work without patent protection. A more sound approach would be to ask whether an inventor would pursue an invention without the potential future availability of enforcing a patent for the invention.

Whats up with this Tim: *Why would Apple bother to develop something like Multitouch without the benefit of patent protection? Quite obviously, it's because if the product is as good as Uncle Steve's presentation made it look, Apple is going to make a ton of money on it.*

What does this mean?! Are you saying that inventors who create good products don't need to patent? You're conflating incentives and market viability.

Also, you continue to have a weird notion of copying and derivative works under patent doctrine. Nobody has to copy Apple's work for its patents to give it the exclusivity conducive to commercializing its invention. Your linquistics get in your way...

Finally, your point about the history of the software industry is weird. Luis calls it out, that firms worked under the assumption that copyrights would be adequate, but soon began leveraging patents as complements and substitutes for copyrights- even before software patents were per se legal. Check out some articles by Stuart Graham at GA Tech and Josh Lerner of Harvard, who have written on this (I'm not name dropping, if citing can be considered that:) but just want to point you to a resource).

Re: iPatents?

Noel Le — Thu, 11 Jan 2007 11:30:22 -0000

Can you expand. Are you implying that patents and bad prodcuts somehow correlate?

Re: iPatents?

Noel Le — Thu, 11 Jan 2007 12:09:13 -0000

Now, you just get back to your conception of copying/derivatives in patents. That pertains to copyrights Tim... not patents.

Lead time is an advantage that can be nearly as valuable as patents (actually, with the USPTO these days, lead time and trade secrecy may be more important than ever). Yet, it does not provide the same kind of formal protection necessary to fend off misappropriation of investment. Nor does lead time facilitate disclosure and the open model of innovation as much as patents through licensing.

Re: iPatents?

Noel Le — Thu, 11 Jan 2007 12:26:47 -0000

Several questions Tim:

*is formal protection preferable to non-formal protection (such as community enforcement)?
*is investment necessary for innovation?

All of the reasons you laid out above I addressed above, but again you dodged the issues.

***If "lead time is an advantage that can be nearly as valuable as patents," isn't it possible that patents aren't needed at all?***

No.

Re: Competition is a Feature, not a Bug

Noel Le — Thu, 11 Jan 2007 18:44:39 -0000

Blafkin nails it IMHO.

***Apple seems to innovate more when they have a competitor breathing down their necks.***

I highly doubt any firm refrains from patenting just so its employees stay motivated and its competitors get a leg up.

***The fact that other firms quickly come along, imitate an innovative company, and drive down prices is one of the great strengths of free markets.***

Can you translate this, Tim? Saying that imitating breeds innovation is a bit shortsighted. Of course, you previously stated that "copying is imitation" so I don't know what to expect. However, in analyzing the industry, you don't want to focus so much on static efficiency as to drive toward marginal cost in a way that is uneconomical to long term innovation; and thus preventative of innovators recouping R&D; costs and investing in further ventures.

Re: Competition is a Feature, not a Bug

Noel Le — Thu, 11 Jan 2007 18:50:18 -0000

A caveat. R&D; "spillovers" is an important part of innovation; knowledge and information obtained in the R&D; process not subject to IP protection or shared with others through licensing/open exchange.

Re: iPatents?

Noel Le — Thu, 11 Jan 2007 20:37:12 -0000

Tim, can you address my points above?

Again, when you say *duplicate* I get the feeling you're talking about copyright. The term *imitate* may be more applicable.

Re: Multi-Touch Prior Art

Noel Le — Thu, 11 Jan 2007 20:38:16 -0000

So are you invalidating Apple's patents?

Re: Competition is a Feature, not a Bug

Noel Le — Thu, 11 Jan 2007 20:44:16 -0000

***So while it might be true that software patents are good for Apple and the software companies Blafkin represents***

At least Blafkin is in touch with the industry. I don't see why anyone in the industry (the legal, for profit and commanding of market share one) would talk to someone who thinks corporations should set aside their interests for various flavors of religious ideology.

***In a free market, the goal is never to maximize the revenues of innovators. Rather, the goal is simply to ensure that innovators reap a sufficient share of the profits from their innovative activities that they will continue to innovate, with the rest flowing to consumers.***

Yes, and hence we have regulatory and commercial policies, unless of course, Tim, you think your ideology would do a better job.

Re: Competition is a Feature, not a Bug

Noel Le — Thu, 11 Jan 2007 22:21:35 -0000

XT, Xerox didn't really patent its work, and thus left open the opportunity for other firms to basically rip it off.

Xerox is a sad story. The firm undertook a lot of important R&D;, but if the resutling work didn't tie into its revenue chain, the company just ditched it rather than patenting and licensing it.

I agree with you, XT, that its Xerox fault for not having a better strategy to appropriate its own work (actually, some scholars have written entire books about this), but the history Richard talks about highlights the importance of patents since you can't always rely on firms ripping each other off for sustained innovation.

Re: Hollywood Baffles Me

Noel Le — Sat, 13 Jan 2007 12:29:39 -0000

Tim, Hollywood baffles you because you may be looking at the wrong problem. Its not DRM, its licensing.

The main issue here may be the licensing agreement between Hollywood and Apple. I doubt Hollywood cares so much about a movie being copied to other iPods as much as Apple has multiple revenue streams while Hollywood only gets one, and its not paid for those copies.

Re: Liberals Citing Libertarians in Tech Policy

Noel Le — Sun, 14 Jan 2007 16:05:25 -0000

Sunstein is a very very respected scholar, but has done little in the IP/tech policy world. His book is more of a comment on how technology can benefit society than a normative policy argument. Works such as Sunstein's are important, but I believe they should be taken in context.

I'm not sure it would be valuable to see more application of Hayek and Coase in technology policy, given that the interpretations I've seen have been, well, not very informed. Look at the marginal cost debate: your pop-culture FOSS advocates see marginal costs as simply distributional costs, while IP critics/friends alike in academia state it must consider the cost to bring a product to market. The former don't get Coase, while the latter might as well give up on communicating to general audiences what they don't understand.

Affiliating a tech policy/IP position with thinkers like Hayek and Coase may be interesting, and give more force to an argument; but don't butcher their views in the process.

Re: Blu-Ray or HD-DVD? Does Anyone Care?

Noel Le — Tue, 16 Jan 2007 14:22:11 -0000

***When I started on the article, I had planned to discuss the various irritations created by DRM restrictions, but I concluded that although those are likely to annoy consumers, they probably won't be the deciding factor in the success or failure of the formats.***

Tim, I believe this insight on DRM would apply generally. Many things shape digital markets, and DRM is seldom such a decisive factor as is often communicated on this board.

Since you left DRM, a policy area where your arguments are weakest, off the table, your article instantly gained credibility.

Good job.

Re: Copying Innovation is Hard

Noel Le — Tue, 16 Jan 2007 20:46:46 -0000

Man, ssheeesh, when talking about patents, "copying" is not relevant. That belongs to copyright doctrine. Uhh....

A couple other points:

Google did patent a lot of its search technology. This will enable it to further commercialize and improve on that technology. Don't doubt that Google developed its software with patenting in mind.

Microsoft entered the search engine late and is now the third ranked search firm.

Who has cloned Google's technology. Your statement about this refuts the whole argument of your post.

Uhhh, would the iPhone or Google search technology exist without patents. Probably in some form, but with patents, these firms can share the knowledge from their R&D;, collaborate with firms holding complementary technologies and further invest in refining their products.

Re: Copying Innovation is Hard

Noel Le — Tue, 16 Jan 2007 20:54:36 -0000

Tim, can you clarify one point. You've stated elsewhere that "copying is innovation." Can you expand, describing both formal means of appropriation, the concept of spillovers and dynamic efficiency.

Re: Copying Innovation is Hard

Noel Le — Tue, 16 Jan 2007 21:51:08 -0000

Lewis, I'll reply to you here rather than TechDirt as Masnick's post is getting to long.

In IP lingo, copying does take on certain context, implying that someone is aware of a technology by copying it. Thinking more about this, imitating might also imply something similar and thus not be right when talking about patents. Check out the post I put up on IPcentral about Lemley's writing on an independent invention defense for patents (I would post the link but then my post would take a long time to clear).

The whole concept of of independent invention in patents suggests that "copying" is not relevant to patent infringement. Patent doctrine is not meant to prevent mere copying, so to say that its hard to copy patented technology isn't really saying much.

Tim, I recall Masnick quoting you a couple weeks back, but if this is not your view, then I apologize. I raise the issue though because I wanted to gauge what boundaries you would suggest for the value of copying in innovation.

The notion that "copying is innovation" does have some truth to it. At the beginning of the industrial revolution, nations often *leapfrogged* by copying and refining innovations from other nations. Early in the Internet era, academic scientists often shared research and encouraged copying of their work.

In today's economy, some level of copying is still important when the societal value of an invention or knowledge is greater than the private value (economists call it spillovers). To facillitate spillovers, IP doctrine has such provisions as *misuse*, reverse engineering exceptions and limitations to protectable subject matter. Thus, current IP doctrine does support the notion that *copying is innovation* to a limited extent.

Re: Copying Innovation is Hard

Noel Le — Tue, 16 Jan 2007 23:06:26 -0000

***The whole concept of of independent invention in patents suggests that "copying" is not relevant to patent infringement.***

Sorry, I meant to say that *copying* is not necessary nor necessarily relevant to patent infringement.

Re: Copying Innovation is Hard

Noel Le — Wed, 17 Jan 2007 08:43:02 -0000

Uhhh Tim, a patents value doesn't just come from enforcement or licensing.......:) Google's patents still provide it with the kind of exclusivity to improve on its technology.

Re: Copying Innovation is Hard

Noel Le — Wed, 17 Jan 2007 12:38:02 -0000

Tim, patents are a FORMAL form of protection, thats a bit more than a warm and fuzzy feel.

***If Google never enforces its patent or seeks licensing revenue from it, how does the patent give it any kind of "exclusivity?"***

The possiblity of enforcement...

Re: Alan Cox and Patent Stockpiling at Ars

Noel Le — Wed, 17 Jan 2007 13:13:44 -0000

Congrats Tim.

Lets wait to see how Cox will use his patent. Will he go after "IP firms" but not FOSS firms, will he license them freely to all or promise not to assert his rights, will he become a troll?

Re: Copying Innovation is Hard

Noel Le — Wed, 17 Jan 2007 13:26:55 -0000

You seem to be saying that a patent is worthless unless another party is deterred from making a certain technology in a particular way, or there is a suit. I see some logic in this, but not really an argument. Of course, I can't predict the future like you can, and don't know if Google will ever enforce or licenses its patents. Having patents gives it more options though.

There are a variety things that could be going through Google's mind. I can't read their mind like you can, but here are some prospects:

Google's patents basically raise the bar on entering the search technology market. They might say: "Hey, we're Google, we have these patents, don't make anything like them, figure out your own way." This is good for innovaiton because it forces creativity and deters duplication.

Or, Google can be saying, "we've invested in this technology, Uncle Sam gave us a patent, now our patent is public info and we can license it to others." This is good for innovation because it spreads knowledge resutling from R&D; to the technological community.

Or, Google might say, "haha, we're patent trolls, if our firm ever flopps, we'll sue any company still standing in the search market." this is not good for innovation... and I doubt its google's strategy.

Re: Copying Innovation is Hard

Noel Le — Wed, 17 Jan 2007 14:31:35 -0000

Tim, you seem to be writing under the assumption, among many, that patents need to be leveraged in certain ways to be useful. Should Google wait until someone develops similar technology before trying to patent their work, should they wait until they see an infringing product to seek a patent. I mean...uhhh

Re: Copying Innovation is Hard

Noel Le — Wed, 17 Jan 2007 21:25:25 -0000

What. First Tim states that after 5 years the wealthiest companies on the planet cannot beat Google at its game, then he says that they're infringing its patents, then he says that all the patents he's seen are so vague there's no point in replicating them.

Lets just wait and see what Google does Tim:):)

Re: Software Patent of the Week: Hash Functions Are Not Novel

Noel Le — Thu, 18 Jan 2007 10:18:23 -0000

Tim, there is actually a standard for novelty in patent doctrine. Even though some technologies may not be novel to you, it may be more productive to talk about novelty in the context of how a court or the USPTO would consider it. The same goes with obviousness. Even though you may call some things obvious, you're using your subjective standard rather than anything dealing with our patent system.

Re: Software Patent of the Week: Hash Functions Are Not Novel

Noel Le — Thu, 18 Jan 2007 11:34:00 -0000

Well, I'm not caught up on USPTO re-examination procedures, but then I'm not doing a patent of the week series where I need to invent my own standards for novelty and obviousness:):)

Re: Software Patent of the Week: Hash Functions Are Not Novel

Noel Le — Thu, 18 Jan 2007 12:55:46 -0000

Well, Snorre, I have some friends who are or used to be at the USPTO, and am not going to criticize their work. However, the USPTO's standards for novelty and obviousness are, as you flamboyantly suggest, a bit outdated.

Re: A False Analogy

Noel Le — Thu, 18 Jan 2007 19:08:29 -0000

***The critique was written by one Greg Aharonian.***

Do you not know who Greg is, Tim. He has been very influential in arguing some of the policy positions and reflections on the USPTO you would agree with.

If you're going to ask Richard to present a patent to you Tim, at least let him know whether you'll decide on their merit with USPTO/CAFC or your standards. You've done 1 patent per week, and I find it interesting to read, but I wish you'd compare the patents' claims to judicial interpretation and USPTO standards- that would better connect your series to patent policy. Right now, you might as well introduce the series as: "I, Tim, will critique this software patent, and despite it constituting less than .001% of all software patents, please use your imagination of what the other 99.5% of software patents will be like..."

***People who know what they're talking about and know they're in the right don't need to resort to name-calling: the facts speak for themselves.***

Yes

Re: A False Analogy

Noel Le — Thu, 18 Jan 2007 20:03:44 -0000

Because the USPTO/CAFC have "standards." If you don't like them, then propose how they can be improved.

You still don't address my points about the statistical insignificance of one patent per week, nor the oddness of basing a patent simply on its claim construction.

Re: A False Analogy

Noel Le — Fri, 19 Jan 2007 08:49:43 -0000

Doug, my point about CAFC/USPTO standards, which you know I don't agree with, was to prod Tim to use those standards to show how ridiculous they are, as well as the patens he looks it. That would make the patent of the week series more informative. Or Tim can create his own set of standards for novelty and obviousness and apply them. As is, his patent of the week series is high and dandy, but tells us little.

Also, Tim, its hypocritical to accuse Aharonian of lack of argument based on your interpretation that he is insinuating something about Moglen.

Re: Software Patent of the Week: Wireless + Dining Philosophers = Non-Obvious?

Noel Le — Fri, 19 Jan 2007 14:49:43 -0000

Tim, again, explain your standards for novelty and obviousness, besides just saying how you don't see any point in the USPTO giving Richard Bennet this patent.

I don't think you understand the point of the patent system.

First, you only consider the ex ante justification (if you don't know what that is, I'm not going to bother telling you).

Second, you seem to think that each patent itself represents an innovation; thats not the case.

Third, what is the point of this patent of the week series when you don't tie your analysis to policy.

Forth, if you think all of these patents are obvious and not novel, then why are you not out there commercializing all the concepts they encompass.

Re: Software Patent of the Week: Wireless + Dining Philosophers = Non-Obvious?

Noel Le — Fri, 19 Jan 2007 14:57:11 -0000

Oh yeah, the phrase "I don't understand" as you use above, about Richard Bennet's patent needs to be expanded on. When someone who is knowledgeable says they "don't understand" then clarification is due. But when someone who is not knowledgeable says they "don't understand," well...

Re: Software Patent of the Week: Wireless + Dining Philosophers = Non-Obvious?

Noel Le — Fri, 19 Jan 2007 15:02:03 -0000

Oh, I'm sorry, you wrote that you "don't see" how Richard's patent is valuable. Again, you quibble about the small stuff knowing full well my point.

Re: Welcome Brooke Oberwetter

Noel Le — Mon, 22 Jan 2007 13:11:34 -0000

Welcome.

I've seen a lot of great tech policy work from CEI over the years.

Re: A Correction on Patent Law

Noel Le — Mon, 22 Jan 2007 13:30:21 -0000

A couple other tidbit, on top of feedback I've already given you.

1) I still get the sense Tim, that when you talk about *obviousness* in your article, that you're either using the dictionary definition, or your own sense of obvioussness. Thats fine, but it does not add clarity when discussing a *legal standard* of obviousness.

Also, I'm not sure if the SCOTUS stated they were confused by the TSM test as much as the justifications for it. If you meant something else, then please clarify.

2)its Don Stout, not David Stout. Further, I don't believe NTP is headed by Stout, although he previously worked for the firm, and currently serves as outside counsel.

3)you imply that NTP is not an innovator. Well, it currently has no products on the market, but its wrong to imply that NTP did not invest in R&D; and attempt to create products. NTP previously worked with firms like AT&T; on push-mail technology, as early as 1990.

4)I find it a bit amusing that you defend Apple and Microsoft as victims of the patent system in the closing of your article, despite tirelessly blasting them for stifling competition and innovation b/c they patent their R&D.;

Re: Software Patent of the Week: Wireless + Dining Philosophers = Non-Obvious?

Noel Le — Mon, 22 Jan 2007 13:36:07 -0000

As is, Tim, you spend 97% of your patent of the week series explaining a patent, and only add a couple sentences talking about policy.

***Once I've done enough of them that I feel comfortable drawing generalizations***

In 10 years, you will not have even covered 1% of software patents...

Re: A Correction on Patent Law

Noel Le — Mon, 22 Jan 2007 15:13:20 -0000

I was actually complimenting you about your comments on Apple and Microsoft. You gotta admit Tim, you do have a field day with these firms quite often:)

Re: A Double Standard on Orphan Works?

Noel Le — Wed, 24 Jan 2007 01:13:13 -0000

Tim, I'm expected something other than this post, especially from someone like you, a prolific writer.

First, authors can selectively waive copyright restrictions upon production of a work, so its not quite right to blame them for shifting costs to efforts such as those at Google- unless of course, you believe Google is more important than writers.

Second, the 1976 Copyright Act codification of automatic copyright assignment is consistent with the dual nature of copyright policy- its one of the few aspects of copyright law that reflects a natural rights approach to appropriating from one's works. Copyright was conceived by our founders as both a natural rights and utilitarien construct (as opposed to patents, which the great American, Thomas Jefferson, wavered on but ultimately agreed was necessary to the extent that utilitarien goals would be met).

Third, I agree with you that the issue of orphan works is problematic. However, I don't see the issue being so much as a problem for copyright law as a market opportunity for copyright clearinghouses.

Re: A Double Standard on Orphan Works?

Noel Le — Wed, 24 Jan 2007 11:02:46 -0000

My self-correction Jim Lippard. My history is a bit dusty, but there were papers tying the Copyright Clause to certain values in the new republic: "life, liberty and property." In any case, maybe I'm just a loyal fan of Locke and Hegel:)

Re: For markets, for fair use

Noel Le — Wed, 24 Jan 2007 19:11:40 -0000

Jerry,

I don't find that Patrick conflates real and intellectual property. But to the point- Patrick's article shows that he is amenable to changing current copyright policy if certain market failures indicate such a need. He argues that the current market is vibrant, benefiting both consumers and producers.

You are right that copyright policy provides structural enforcement for the creation of markets, and that once those markets arise, they may foreclose the creation of some other kinds of markets. However, lets not fall into "the road not taken" story too much when talking about serious policy.

Your argument that sales of digital goods fall under both contract and federal copyright policy seems a bit vague. I gather your point is that since Congress *chose* to grant copyrights, and because sales of digital goods are, in part, governed by copyright law, that Congress can simply *choose* to amend copyright policy when it feel like. Is this right? I'd opt for Congress to rely on messages from the market.

Your point about time-shifting so that consumers can only watch content during some hours and only on some days is also vague because it tries to raise an issue Patrick does not even address (being able to enjoy content only during some hours and only on some days). I see you anticipating that Patrick would argue for expanded copyrights, or more restrictions on (purported) fair use. That argument does not arise nor is it suggested in his article.

At the end of your critique, you raise the issue of government failure in not protecting fair use and thus Uncle Sam should try to fix its *mistakes*. This does not support the argument you later make for amending copyright policy to facilitate (perfectly) free markets however.

I would also like to see the DMCA's anticircumvention provision aligned more with traditional fair use doctrine as you may agree with, however, lets be a bit cautious here. The TLF post you cite as support for your argument assumes that society should vie for perfectly free markets (as far as I know such a market has not been successful anywhere in the world), and that any instance of non-perfect competition is detrimental to innovation (as far as I know, perfect competition has proven itself the applicable model in almost zero industries).

The differences between perfectly free markets v free markets, and perfect competition v competition are important, because they all pose different economic models. If you ask me, they can be seen as reflecting another distinction; those who argue policy based on abstract principle v those who look towards the industry in question. I trust basing the market more than on abstractions, because the market reflects what actually happens.

I'm a strong supporter of fair use, perhaps as much as you are, and am often disappointed that more people don't talk it about it since its an integral limitation to copyright policy (as is the public domain, time limitations on copyrights, and subject matter). See some writings I've done on reverse engineering and fair use- there is a bit more flexibility under the DMCA than some critics understand. You might also look up some stuff on IPcentral on the public domain. These seem to be issues you hint at as your concern.

Re: Bad News for Apple

Noel Le — Wed, 24 Jan 2007 20:49:52 -0000

Tim, I'm curious, do you want to repeal Section 1201 to facillitate reverse engineering that would result in interoperable products, or to facillitate *tinkering.* The reading of DMCA cases in your paper suggests the latter.

I ask because many of the cases you talked about set out quite clear guidlines on why acts of reverse engineering were not protected by Section 1201(f)- 1)because the resulting product infringement the Copyright Act or 2)because the intent of the DRM system was broken by the finished product (the interoperable product enabled unauthorized uses). Fewer DMCA cases than you suggests have have declared the act of reverse engineering illegal under Section 1201.

If you want to repeal the DMCA because you think Section 1201(f) prevents reverse engineering for interoperability, your arguments don't support that. Reverse engineering happends EVERY DAY in the industry! On the other hand, if you merely want to safeguard *tinkering*, your arguments are less concerned with innovation than they would be if you were worried about reverse engineering for interoperability.

Re: Bad News for Apple

Noel Le — Wed, 24 Jan 2007 22:21:52 -0000

Tim,

You're talking about two things: technical barriers and legal barriers. You also assume MP3 player firms have to reverse engineer iTunes for their customers to get premium content. These are not the types of arguments to set on top of a narrow reading of the case law.

Re: Bad News for Apple

Noel Le — Thu, 25 Jan 2007 01:06:13 -0000

Real Networks is sitting pretty...

Also Tim, why is it even necessary for any firm to reverse engineer FairPlay. An MP3 maker can simply negotiate its own licensing deals with music labels. So to say that the DMCA deters innovation, because it *may* prevent an instance of reverse engineering of a popular product/service is a bit off.

Re: For markets, for fair use

Noel Le — Thu, 25 Jan 2007 01:17:34 -0000

Charles, I don't believe the digital market was *broken* in 1997, rather it needed some regulatory basis in order to form- and hence, we are here today in a vibrant digital landscape.

Re: For markets, for fair use

Noel Le — Thu, 25 Jan 2007 14:04:13 -0000

Steve R, you called me out on that one. Yes, I believe regulatory policy has its role.

Take a look at Jane Ginsburg, Copyright and Control over New Technologies of Dissemination, 101 COLUMBIA LAW REVIEW 1613 (2001). It explains how the DMCA is inline with historical amendments to copyright law by Congress.

Re: Sloppy Reporting on Patent Cases

Noel Le — Thu, 01 Mar 2007 20:11:14 -0000

Tim, your discussion and analysis can appear dismissive at times; the figures I mention above are not so extreme as to be casually dismissed, even if you disagree w/ them.

Re: Thoughts on Black Markets

Noel Le — Wed, 30 May 2007 19:41:51 -0000

Regardless of what consumers feel, you cant just go around downplaying piracy to hype up imaginary rights with no other basis than what you regard as a natural right to information.

Re: DeLong leaves PFF

Noel Le — Sat, 02 Jun 2007 16:07:02 -0000

Tim one of your methods of getting attention has been to throw insults. You even boast of it above in a resentful rant that Jim never flattered you w attention. Its been important that I engaged you, otherwise anybody from the industry would mistake the think tanks on TLF, where you write the most, as uninformed and detached. You have valued our engagements since you seemed to have settled down and gotten more sense of proportion (at times). Thank me later.

Re: File Sharing’s Funny Math

Noel Le — Thu, 07 Jun 2007 20:09:54 -0000

Doug I dont care about Tims career as much as you do:):):)

Re: The Technology Liberation Front » Archive » More on the DataTreasury Patents

Noel Le — Thu, 03 Apr 2008 12:09:33 -0000

Knowing Tim, he'll respond by dismissing this critique as "silly" or "obtuse," asking the rhetorical question of "what are patents good for to begin with," or totally going off on some analogy that amounts to an intellectual slight of hand.