Disqus - Latest Comments for Noel Le

Re: Against Platform Monopolies: Conclusion

Noel Le — Mon, 07 Aug 2006 16:55:41 -0000

Tim, I've looked through your posts on "monopoly platforms" and while interesting, I'm curious what exactly do you mean by "monopoly." Do you mean protected by IP, with semi or fully closed protocols, centralized control by a vertically integrated platform creator? Can you give some examples...

Also, some good related article:
http://papers.ssrn.com/sol3/papers.cfm?abstract...
http://papers.ssrn.com/sol3/papers.cfm?abstract...

Re: Software Patent of the Week: Patents In Outer Space!

Noel Le — Mon, 07 Aug 2006 17:13:04 -0000

Tim, while entertaining, your patent section would be more interesting if you did more than criticize some outlying patents. Why not actually address the substantive issues. What you're doing now is addressing over and over one issue that all agree on: the need to assure patent quality.

Re: Software Patent of the Week: Patents In Outer Space!

Noel Le — Mon, 07 Aug 2006 18:51:04 -0000

Any way we can look at some of the patents IBM donated to the open source folks?

Re: Software Patent of the Week: Patents In Outer Space!

Noel Le — Tue, 08 Aug 2006 10:40:40 -0000

Well, Mike, its expired, so let it rest at peace. In any case, I'll look around, but I still propose that patents currently licensed or the subject of litigation are the most interesting as far as Tim's purposes go. Otherwise, Tim, you're just calling out either economically and technologically worthless patents, or merely stirring up patent trolls...

Re: Software Patent of the Week: Patents In Outer Space!

Noel Le — Tue, 08 Aug 2006 11:13:52 -0000

OK, so the question now, of the patents you've considered, have any of them been re-examined by the USPTO, and roughly what kind of money rests on them. I'd really like to hear you say "here's a bad patent that the USPTO re-examined and confirmed as a valid patent" or "here's a bad patent upheld by the court for $100m."

Re: Software Patent of the Week: Patents In Outer Space!

Noel Le — Tue, 08 Aug 2006 13:19:39 -0000

Yes, I understand your issue on the obviousness standard. One thing I'd like to point out though is that the level of abstraction (or, more likely generality) at which a patent claim is made is often obvious to those well versed and practiced in the art. However, its important not to confuse "obviousness" with "comprehension." Simply because you comprehend something does not make it obvious in the patent context meaning. Further, the way you describe lack of obviousness conferring monopoly rights over entire industries for existing software patents implies that courts cannot interpret patents narrowly, well within the actual (obvious) patent claim.

I'm on your side with raising the standard for obviousness, but I think there's some flexibility in the courts and USPTO (re)examaination process to efficiently address bad patents rather than merely invalidating them across the board.

Re: Carr Misreads Benkler

Noel Le — Tue, 08 Aug 2006 16:38:18 -0000

Simply because open source folks collaborate or work under commercial institutions, does not reduce the fact that they are open source developers.

To clarify things, lets distinquish several things. 1)peer-production, which can mean developers within a firm, or across collaborating firms, from open source peer production 2) developing open source code as a volunteer v as a paid developer. Its easy to conflate two meanings of "open source", as it signifies both a development approach as well as code falling under particular licenses. Tim, I gather here's where you and Nick disagree.

While important, Benkler's work should also distinquish open source projects with business models (or even aspirations), and those without. Although writing code can be an "economic activity" its a stretch to say that volunteer open source development with no business model is "economic activity" even if the developer is drawn by non-monetary incentives.

Re: Carr Misreads Benkler

Noel Le — Tue, 08 Aug 2006 17:18:07 -0000

Closed-source peer production would be akin to a vertically dis-integrated development organization(s).

I've heard of Merriam-Webster's definition of "economic" and agree with it. However, to call non-business oriented open source software "economic" would be a vast assumption. I can go to Source Forge right now, tinker around, but would that be economic activity?

Just because code is sitting on SourceForge, or the new Google repository, and perhaps eventually downloaded and implemented, do consumers ever bat an eye, and does the code really compete with proprietary technologies. Some open source programs do, and they compete well, but I would not conflate the open source method with specific open source projects. Specific open source projects compete with proprietary technologies, while most projects falling under the open source method probably don't get to that point.

I see now that you understand Benkler's view of "peer production" as meaning everyone who contributes to an open source project at all is a part of any eventual commercial activity that project rolls-up into. Does that mean that by giving feedback to Adobe's or RealNetwork's surveys that I'm part of their economic activity?

Re: Carr Misreads Benkler

Noel Le — Wed, 09 Aug 2006 07:49:14 -0000

Carr still makes a good point though. Tim, while you see the relation of open source production parallel or complementary to firm organization, Benkler does pitch open source beyond its role as simply an input. We're still a far way from open source being "on par" with other forms of economic activity.

The term open source is so ill-defined that you see open source advocates crediting it with basically anything not-for-profit, involves cross-firm sharing, outside the standard proprietary model. Heck, I'll even throw "relies on selling complementary services or products in there too" (this is in response to some silly post on TechDirt that suggested musicians leave the RIAA, and start selling T-shirts and hats by drawing fans with their music). Probably the funniest analogy I've seen called open source is academic scientists working under heavy government and industry contracts, who freely disseminate their research; there's no issue called misappropriation in such cases, and somebody is actually ponying up the money for the work.

As far as we're talking industrial organization, I would personally opt for Berkeley professor Henry Chesbrough's definition of open source as that which involves a business model, and revolves around a set of licenses. Open source may be important, and have its role in software development, buts its highly dependent on more commercially oriented activity.

Re: Carr Misreads Benkler

Noel Le — Wed, 09 Aug 2006 09:21:33 -0000

Mike, actually I was wondering whether RMS is considered "on the fringe" within the open source movement. I've pointed out elsewhere that Bill O'Reilly and Linus Torvalds are respected individuals even in the proprietary world, but its the difficulty of distinquishing them from RMS and his general counsel Eben Moglen that makes me and others suspicious of open source.

I like your statement that not "anyone but purists, ie ideologues, would take issue with the notion that commercial enterprises have been very important" to open source. This is where most discussions on open and proprietary software should begin, with the purists not involved...

One of the first corporate adoptions of the open source business model came from IBM, under the leadership of the very capable Louis Gerstner. IBM's marketing campaigns aside, Gerster, a former McKinsey executive, didn't lead IBM in that direction without clear insight into how he could combine open source development and a business model. I write a bit about this here (http://weblog.ipcentral.info/archives/2006/08/c...)

Re: Open Source as a Perpetual Motion Machine

Noel Le — Wed, 09 Aug 2006 17:28:58 -0000

First off, all of you readers. What do you consider Libertarianism in the context of innovation policy? I view Libertarianism as empowering individuals and private entities, which in the long run will produce the most sustainable technological innovation. I support policies that enable the private sector, such as copyrights and patents. I differentiate antitrust policy as such an "enabling" policy, as its more of something "imposed" by government regulators (although theoretically it enables consumers to gain more selection of goods at better prices). I also appreciate enterprise, the freedom it provides, and the societal means to enterprise. I'm not the wealthiest individual (someone tip me off on any prospective TLF IPO) but coming from a developing nation I see enterprise as synonymous with virtue, talent and education. I hold in high regard those I've worked with in the technology industry who help drive the foremost innovating economy. Hence, somewhere in there, Tim and I differ on "Libertarianism."

Tim: "Corporate support is obviously beneficial to open source efforts, but they would get along just fine without them."

Noel: Do you mean commercial open source efforts, or simply working on code? I'm still baffled on how you define "open source." To say that "open source" is sustainable without corporate money, OK, but sustainable in what sense. That it will continue, will it create innovative products, come up with new programs, improve on existing code, that there will always be volunteer programmers organized around SourceForge?

Tim:"I think the reason is that one of the recurrent themes of libertarianism is a suspicion of claims that things are "free,"...not, in fact, free, but are funded by taxes taken coercively from other Americans."

Noel: Its good you bring up tax dollars. In the heyday of early ARPANET and Internet research, it was the government footing the bill. I applaud you for not drawing up those scenarios as examples of "open source."

Tim:"But nothing about libertarian philosophy says that free enterprise is the best way to organize all productive activities. We view markets and private property as means to the more fundamental ends of liberty and prosperity..."

Noel: I ask you how you imagine the current technology industries, what is your ideal. Not to be rude, but all this working for free, code as a means to liberty, suggests that you liken the industries to TS Elliot's Wasteland rather than the part of the economy driving a larger part of U.S. growth, and separating our lifestyles from those in developing countries.

Tim:"Business models aren't the point of those institutions (churches, schools), and no one participating in them expects to turn a profit from them. Precisely the same considerations apply to free software..."

Noel: No, there is nothing wrong with that. And I know you're a talented programmer, so program all you want. Good for you, as most folks are scared of computers. I guess where you and I disagree is on exactly what part of the open source movement we're referencing. Coming from a commercial policy viewpoint, I'm not criticizing talented programmers, who can programmers in the dark, with their eyes closes, who think in programming language (some of my pals). Its where you see business justifications supplanted by this lingo open source has developed to solidify itself as a "movement" that I find open source misleading.

Tim:"Another example of the same phenomenon is this blog. None of us are paid to blog at TLF, and none of us (I hope) ever expect to become millionaires from the TLF IPO. Yet we generate gobs of content and give it away for free. "

Noel: You're right!!! I enjoy our interactions. And thanks for not calling this "open source" blogging.

Tim:"...the laws of economics actually do allow free lunchesÃÂ¢Ã¢?Â¬Ã¢?Âespecially for intangible goods that can be reproduced at close to zero marginal cost. Open source software, like the posts on this blog, really are free."

Noel: OK, now we're speaking the language. So, reproduction and distribution at zero marginal cost. The flip side is that because open source programmers work for free, so production costs are at zero in a sense. But here, I look back at the title of your post (Open Source as a Perpetual Motion Machine) and wonder if you'll call open source more innovative, longer sustaining sustaining. There's a reason why you bring this language in, and that should be where our next discussion starts.

Re: Open Source as a Perpetual Motion Machine

Noel Le — Wed, 09 Aug 2006 19:53:02 -0000

Jim, I'm sorry to say I find your response equally confusing. And I read it twice.

In your comment you make no mention of "open source." I'm curious, whats your view besides that fact that its another mode of production. And how is AOL relevant. Because its free, open, shared? Thats the point I'm trying to make with Tim? How do you define open source?

Personally, I used AOL a while ago. I view their recent move as a means of salvaging any remaining business model given their consumer base. But lets see if this new approach of is profitable or sustainable before rejoicing over the simple fact thats its "open."

Re: Carr Misreads Benkler

Noel Le — Wed, 09 Aug 2006 20:02:33 -0000

Yeah, those spammers suck. Tim lets swap ISP addresses to block from our domains.

Good to see RMS isn't considered the icon among all open source fans. Whewwww...

Seth, you make a good point.

Tim, although a bit different that what I tried to explain, Seth calls out a distinction between commercial and non-commercial open source. Do you agree that she does this along the lines of open source software (commercial) v free software ("moral").

Re: Carr Misreads Benkler

Noel Le — Thu, 10 Aug 2006 01:10:28 -0000

Ned, while I don't disagree with you, you should look at this post where I reviewed Henry Chesbrough's new book on "open innovation." It essentially describes open source software, as well as patents, in terms of forms of economic inputs and transactional methods. You might find it interesting because by placing open source and IP in the broader context of industrial organization, a lot of things referred to as "open source" such as peer-collaboration, distributed production, development modularization and "free" products/services are also leveraged by proprietary industry.(see here: http://weblog.ipcentral.info/archives/2006/08/o...)

Jim Harper said in another post that he views open source as a production model. He didn't explain too much, and I wish he would have gone further with his citation to AOL in a discussion on open source. However, he did give me the idea that perhaps open source developers work like free lance journalists. These journalists don't sell everything they write. Sometimes they write to build a personal portfolio, sometimes for fun, perhaps even to write about things that 9-5 journalists never write about. Free lance journalists can post their work on the web for free and accumulate readerships or cited/linked to by other sites. Perhaps they do this in their spare time or full time as part of a larger plan of building foundations for a career. There are many business models I can imagine arising from this scenario, yet it can exist without or peripherally related to a revenue stream.

How does this scenario sound as an analogy for open source production? There are some limitations to the analogy, but I'm trying to grasp what everyone one here, as Libertarians, refers to as open source. Of course terms like "patent troll" are probably equally undefined, but everyone agrees that they don't like trolls. With "open source" there's a lot of disagreement, which makes less ambiguity valuable for discourse. Jim, Tim, Mike, Ned, Seth?

Re: Open Source as a Perpetual Motion Machine

Noel Le — Thu, 10 Aug 2006 09:38:46 -0000

This "obsession" with meaning of terms is important for understanding something new like open source. If you're going to argue its been around for centuries, and draw everything from Bill Gates' donation to worldwide charities, Thomas Jefferson, cold war DARPA researchers, AOL giving away free content, etc, etc open source, then what is it that open source advocates really support. Heck, I'd say that Microsoft giving away its Internet Explorer for free is open source under some definitions I've seen.

Its a bit different that asking what "is the meaning of is." If it seems circular, no problem. I'll count the number of ways in which open source is defined within the next big thread, other than that its simply a resentment towards successful companies and those that won't let you do what ever you want with their products.

If you think Epstein is overrated, I'd be scared to know what other academics you'd put in any kind of responsible policy positions.

Re: Open Source as a Perpetual Motion Machine

Noel Le — Thu, 10 Aug 2006 10:37:18 -0000

***The academic process, for example, shares with open source processes the tendency to reward high achievers with status rather than monetary compensation. But no one thinks that academia is literally "open source scholarship." We're making analogies to help illuminate the concept***

Precisely my point. An analogy is a generalized definition, and benefits from the flexibility of being "in reference to" rather than "it is." Analogies for things like open source are also parasitic to the extent that they absorb characteristics rather than presenting them- hence my argument that your views on "open source" are really only based on what might help the concept of open source. Thus, far, you've made open source an amorphous movement made in opposition to various established industries, business models, innovation models and perhaps even particular companies. You define yourself by what you try to separate yourself from. After raising the issue of defining open source, we've seen at least several different views raised on this and another thread on TLF. I wouldn't disagree with any of these views on open source, only that on whole and taken together, they resemble an adolescent seeking identity.

I don't agree with everything Professor Epstein writes, but to say he's not really an academic... can you explain that further?

Re: Carr Misreads Benkler

Noel Le — Thu, 10 Aug 2006 10:41:28 -0000

Seth, thats the most common sense I've seen on TLF in the past few days... after reading spring quarter law articles that explain economic concepts with poems (OMG) and listening to analogies on something as concrete as technological innovation its good to hear.

Good job on the DMCA exemptions by the way.

Re: Open Source as a Perpetual Motion Machine

Noel Le — Thu, 10 Aug 2006 10:47:08 -0000

Well, reading your statement that way was actually giving you the benefit of the doubt. I know Tim isn't an academic. Still, software engineers that write for think tanks can still define terms they use dozens of times during the day.

Re: Open Source as a Perpetual Motion Machine

Noel Le — Thu, 10 Aug 2006 11:08:13 -0000

It surprises me that you state you don't know my point, and then you address it.

Good to see we've gone from open source as "on par" with other business models to it being an "alternative."

Re: Open Source as a Perpetual Motion Machine

Noel Le — Thu, 10 Aug 2006 11:29:05 -0000

Now thats ridiculously uncalled for. But hey, if thats how you support Tim and your positions, stick with it.

Re: Open Source as a Perpetual Motion Machine

Noel Le — Thu, 10 Aug 2006 13:49:55 -0000

***resemble an adolescent seeking identity***

See Doug's comments. Is that the kind of support you want for your writings Tim?

I haven't followed the MA situation closely enough to comment on it, but Mike's view of the MA state govt as a market consumer would lend support to the file format initiative. I'd be more intersted in how the initiative will affect the way MA trades records with other states and the federal govt, and whether that will have policy implications or draw similar initiatives elsewhere.

I don't have a hard time grasping open source although some of the analogies Tim cites are amorphous. Mike speaks in more comprehensible terms.

I see potential in open source, but look on it mainly as a perhipheral strategy that can sustain a company when a strictly proprietary model meets limitations, or as one in hybrid with proprietary technology. Mike sees it more as a development process or activity. Tim seems to take an electic approach putting it into no single paradigm, while attempting to discard the political dimensions. Tim draws different perspectives to his blogs, some more serious and steady than others. Yet I find a lot of blanket opposition to the proprietary industry under blog title terms like monopoly, rent seeking, perpetual motion machine- which are highly suggestive.

You might cite AOL, Apple or other companies as being interesting examples of hybrid strategies. IBM is probably the better one to watch.

***What you and DeLong don't get is that for many developers, the thrill of taking down a big company with an open source project...***

Well, first of all, I only speak for myself. But regarding your comment, here's where we depart. Of course having a small company beat a big company is interesting. The competitive advantage of the small company is usually something the big guy never sees despite mass amounts of investments in strategy, planning and development. The small company did something right, by introducing something new and innovative, by outsmarting the incumbant. But I wouldn't frame the concept simply in terms of open source vs big companies, it happens on a broader scale. Its just doing better business.

People have different perspectives, and gather information from different sources. A programmer will hold views separate from an economist or lawyer. Knowing that most of you are open source supporters, rather than make definite points, I tried to draw out the issues by speaking of different kinds of Libertarians, replying line-line to posts, and asking folks to clarify their views, etc (only to get some random comment about AOL).

Re: Open Source as a Perpetual Motion Machine

Noel Le — Fri, 11 Aug 2006 10:45:47 -0000

Those are some good posts guys. I'll respond, after cleaning off my desk a bit more...

***It is important for open source skeptics to realize that most of the anti-business rhetoric eminates from the "free software movement."***

Mike, here's where a lot of fundemental misunderstanding takes place. The fact that you say "it is important for... skeptics to realize" indicates that you admit the potential confusion on open source.

I write about some of the "rhetoric" here:
http://weblog.ipcentral.info/archives/2006/08/b...
http://weblog.ipcentral.info/archives/2006/07/w...

Given that even Mike admits open source is abstract, and Tim states its an analogy, I do find it important to define at least a baseline of terms when discussing open source. I write of this here
http://weblog.ipcentral.info/archives/2006/08/o...
http://weblog.ipcentral.info/archives/2006/06/i...

Re: Rent Seeking on Wall Street

Noel Le — Fri, 11 Aug 2006 12:37:08 -0000

Is this the coming of Wall Street patent trolls? They'll even wear pinstripes. I'm curious what kind of disputes will occur. The same fear of litigation wars has marked the software industry, yet you often find its not the usual painted villains such as big corporations on the offensive (or if they are, at least against each other), but on the defensive end of litigation.

***academic conception of patents, in which inventions are always assumed to be clearly defined and non-obvious***

Look at *empirical* research, perhaps by Mark Lemley, Kimberly Moore, Dan Burk and a few others. I think Carl Shapiro and Robert Merges have done some work too. I can send you some links when I have more time.

***At least in the realm of software and business method patents, companies have long since dropped any pretext that their "inventions" are genuinely novel discoveries.***

Perhaps some, but I'm not sure who they are.

How much can you really tell by claim construction alone? If two parties aren't in dispute, they'll license. If they go to litigation, they'll witness an evolved role on patent policy for court interpretation and reexamination at the USPTO. Court interpretation and USPTO re-examination decide how and to what extent a patent is enforced, if at all. Hopefully some of the lessons learned recently will integrate into good patent reform laws.

There is certainly a disconnect between the academic literature and the real world. While its good to take preventative measures for a possible dire situation such as the one Tim writes of, I'd say lets see how things develop. Professor Merges voiced similar view in a 2003 publication where he addressed fears surrounding business method and software patents: "A funny thing happened on the way to the demise of the software industry. It never happened." http://papers.ssrn.com/sol3/papers.cfm?abstract....

Re: A Laptop in Every Hut?

Noel Le — Fri, 11 Aug 2006 17:23:24 -0000

I think the program is a great idea.

The govt of India, the one trying to globalize, that houses some of the best math and science schools in the world, the foreign research center for successful American companies; yet it has one of the lowest percentages of Internet penetration of any country, its rural population (a pretty big part of the country) is extremely far removed from some sucess stories you hear.

Don't get me wrong about India. I have a lot of friends from India who made socio-economic mobiligy look like a natural process when they came to American. They would probably agree with me however that India missed on a good opportunity.

Re: Open Source as a Perpetual Motion Machine

Noel Le — Fri, 11 Aug 2006 17:51:42 -0000

Eniga, you raise the standard TCO scenario.

TCO *was* a much debated issue, and having spent some time on it I'll say there's no clear determinations of systems costs over the long run. You're looking at higher upfront costs (proprietary) compared to sustaining costs (open source). There might be differences that depend on what part of the system you use open source v proprietary technologies for. Without clear indication of total cost of ownership advantage, or other benefits to increase/offset costs considerations, your pharma company doesn't approach Schumpeterian Creative Destruction for proprietary software or the scenario you describe as: ***the rest of the economy has figured out a way to reduce the price of something to very close to its marginal cost of production.***

Re: Open Source as a Perpetual Motion Machine

Noel Le — Mon, 14 Aug 2006 00:35:02 -0000

Enigma, there is budding potential for "creative destruction" with OSS. I eagerly await when it actually materializes in the market, rather than exist as an abstract hypothesis. Do you disagree? Would you say we`re seeing the process unfold, are we approaching the "tipping point" or has the event passed with muted enthusiasm and negligable market impact? I`d say its in the premature stages.

Re: Rent Seeking on Wall Street

Noel Le — Mon, 14 Aug 2006 01:57:44 -0000

Hmmm. Tim I`m curious, which academics do you find "disconnected" from the real world of patents? On another note, I`ll point to the absence of popular OSS proponents Lessig Moglen Weber from patent industrial organization and law and econ conferences in the past decade. OSS supporters Hunt Kahin Varien on the other hand seem to have positioned their way onto very important invite lists. I`m deeply surprised you and Enigma give them the silent treatment when they support your cause w/ more credibilty than others you cite.

Re: Software Patent of the Week: Where Does a 600-pound Patent Sit?

Noel Le — Mon, 14 Aug 2006 09:17:14 -0000

Hmm, I believe Myhrvold used real property as a loose analogy in his testimony, quietly emphasizing the concept of private ownership. He only wanted to simplify IP to Hill staffers and and the House committee rather than to compare the economic models of forms of property.

Re: Framing the Copyright Debate

Noel Le — Mon, 14 Aug 2006 09:20:47 -0000

Lessig has toned down in recent years, becoming more moderate and considered in his views. Its good to see this of someone as capable of reaching diverse audiences as he.

Didn't much of the current IP regime arise under Clinton?

Re: Software Patent of the Week: Where Does a 600-pound Patent Sit?

Noel Le — Mon, 14 Aug 2006 09:37:32 -0000

Again, the scope of a patent will be determined by the courts and USPTO. I question the value of judging a patent merely on its claims. Mark Lemley wrote about this several years ago, when he outlined the flexibility courts have in patent enforcement and how this ability can be leveraged to adapt the patent system to different kinds of innovations, thereby avoiding a "one size fits all" approach which would deter the effectiveness of patents in facillitating innovation. http://papers.ssrn.com/sol3/papers.cfm?abstract....

Also take a look at an even earlier Lemley paper, where he argues that traditional patent law applied to software would result in overly broad patents and resemble Kitch's prospect theory, which would be especially counter-productive in software v other industries (although I question some of Lemley's positions I'm just trying to point you to some good articles). http://www.law.berkeley.edu/journals/clr/librar....

Re: The Cost of the Closed Xbox

Noel Le — Mon, 14 Aug 2006 11:23:13 -0000

***Microsoft's strategy imposes a real dead-weight cost on the overall value of the platform. There will be games that don't get made...and there will be games that are made, but which ordinary users will be prevented from playing... Microsoft's restrictions on entry ...is shrinking the economic pie relative to how large it would be if anyone was free to create games and publish them for anyone else to play.***

Wow, sounds like Microsoft is really distorting the market for games. With all the inefficiency and lost innovation, this sounds like the perfect opportunity for another company to create an open gaming platform and force Microsoft to follow Tim's "open" strategy. I'd consider why this hasn't happened before generalizing the hypothesis as far as having implications on the DMCA.

Re: The Cost of the Closed Xbox

Noel Le — Mon, 14 Aug 2006 11:49:51 -0000

***interoperability increases societal wealth but it reduces the profits of the firm that previously had exclusive control over its platform.***

OK. Your point is that innovation and consumer wellfare will increase in the gaming market if companies act in ways they don't have direct incentive for, but that the proposed actions would be better on the whole for the industry and consumers; further, rather than propose some kind of govt regulation forcing the opening of protocols or compulsory licensing you posit that simply peeling away at the DMCA would effect your Newtonian gaming market. Is this right?

The gaming industry seems to be doing fine; consumers are happy, companies are making money and there are a number of solid competitors in the market. Even if its not optimal, why not let the market run its course, why disturb it?

Re: Software Patent of the Week: Where Does a 600-pound Patent Sit?

Noel Le — Mon, 14 Aug 2006 11:53:07 -0000

Here is precisely where we disagree: "fact that the patent was granted at all is evidence that our patent system is screwed up." OK, but what do we do now. I view that if a court enforces a terrible patent, then our patent system is screwed up.

Funny you leave off criticism for Amazon's 1-click patent:)

Re: Profiles in Rent Seeking

Noel Le — Mon, 14 Aug 2006 16:42:35 -0000

***the average defender of strong IP, such as the average member of the PFF, is highly cynical.***

Actually, "strong IP rights" isn't quite the same as enforced IP rights or respect for IP through rule of law. Note that PFF supports raising the non-obvious standard for patents, as reflected in recent amicus filings. http://www.pff.org/issues-pubs/filings/050511ks...

***They are academic capitalists who live in a world of theory.***

Hmm, this is why Tim went off about academics and their Newtonian blackboards in his recent posts. Hence, I asked him a question, which I now re-pose: which academics do you find "disconnected" from the real world of patents? I`ll point to the absence of popular OSS proponents Lessig Moglen Weber from patent industrial organization and law and econ conferences in the past decade. OSS supporters Hunt Kahin Varien on the other hand seem to have positioned their way onto very important invite lists. I`m deeply surprised you and Enigma give them the silent treatment when they support your cause w/ more credibilty than others you cite.

Re: Software Patent of the Week: Where Does a 600-pound Patent Sit?

Noel Le — Mon, 14 Aug 2006 23:18:33 -0000

Companies can invent around, license, cross license, appeal for USPTO reexam, go to a mediator or go to court. I can see how the organization of OSS makes these difficult but they are transactional costs the rest of the industry works with. Ron Mann did some empirical research on how well this works out. Further the Lemley paper I pointed you to found that very few patents are ever litigated and those that are usually belong to small companies.

Re: The Cost of the Closed Xbox

Noel Le — Tue, 15 Aug 2006 12:32:57 -0000

Yeah Enigma, you are looking out for how Microsoft can pull better profit by openning the Xbox platform. Rigghtt, suureee. Yeahhhh.

Enigma: what he is saying that there exist real profits to be made from an open platform, but that the prospects of monopoly profits, enabled by the DCMA, cause companies to seek monopolies. Therefore, the DMCA has distorted the market, inducing monopoly seeking-behavior in companies that might otherwise adopt different strategies.

Richard Poster: ...competition to obtain a monopoly is an important form of competition. The more protection from competition the firm that succeeds in obtaining a monopoly will enjoy, the more competition there will be to become that monopolist; and provided that the only feasible or permitted means of obtaining the monopoly are socially productive, this competition may be wholly desirable. A firm that will have the protection both of intellectual property law and of economies of scale in consumption if it is the first to come up with an essential component of a new-economy product or service will have a lucrative monopoly, and this prospect should accelerate the rate of innovation...Antitrust Law Journal 2001 Symposium: Antitrust at the Millennium (Part II) ANTITRUST IN THE NEW ECONOMY, 68 Antitrust L.J. 925. Richard A. Posner.

Re: The Cost of the Closed Xbox

Noel Le — Tue, 15 Aug 2006 13:39:36 -0000

Please explain why seeking monopolies for platforms is inherently socially harmful, specifically the methods to obtain and sustain monopolies.

And how do you define monopoly? I didn't see that in your series. Do you mean economic monopoly, close vertical integration of a platform and peripherals,etc?

As long as we're talking about gaming platforms would you say Sony, Nintendo and Sega are monopolies?

Re: The Cost of the Closed Xbox

Noel Le — Tue, 15 Aug 2006 15:25:59 -0000

MikeT,

I'm not arguing for monopolies per se, I'm arguing, and you seem to agree, that competing to become a monopoly generates innovating activity. Hence, you cite the Mac and Linux forcing MS to improve, and .Net and Java. However, if you have the case that a monopoly already exist (here distiniquish between levels of monopoly), unless its an illegal one I still don't think there's sufficient grounds for forcing it open. That will preserve incentive for competitors to beat the monopolist by creating something new.

Even if breaking a "legal" monopoly increases social welfare and overall economic returns within an industry, you have to give a party incentive (perhaps in the form of competitive threat) to "open" up.

There's no a priori argument for where a monopoly should start or end. Xbox wouldn't be a good example for that debate anyhow. Windows would, so would the Mac.

Tim, you wrote 10 posts on platform monopolies without describing what a monopoly is. What do you mean by that term? I suggest you look at Professor Henry Chesbrough's new book on open innovation. I think you will see why I'm interested in whether "monopoly" signifies a form of business organization, market share, etc. See here (http://weblog.ipcentral.info/archives/2006/08/o...).

Re: The Cost of the Closed Xbox

Noel Le — Tue, 15 Aug 2006 15:47:12 -0000

OK, that makes sense. You mean not so much a monopoly in terms of economic market share , or reflecting firm/product organization. You mean monopoly in terms of "leverage."

Re: OK Go and DRM

Noel Le — Wed, 16 Aug 2006 13:37:49 -0000

***The presence of DRM in this case hurts everyone: it hurts OK Go by reducing the number of people who will learn about their music. It hurts VH1, whose website is made less useful to potential visitors. And it hurts Mac users, who are excluded from using the site.***

Man, you must have been absolutely intent on accessing the music from VH1 with your Mac. Most users would just go to another website. That would provide substitutional relief, unless you find some inherent benefit in getting music from VH1 that far outweighs other resources. You're thinking is similar to: "I found an open parking spot, but wow, the spot is too small for my car, rather than simply park somewhere else I'll examine and hypothesize how it would be beneficial to everyone if the spot was larger."

Re: Harper, Levine, and Shapiro on Copyright

Noel Le — Fri, 18 Aug 2006 10:49:08 -0000

Yeah, I agree with Enigma.

There's no coherence in Jim Harper's presentation.

Levine makes some points, which aren't realistic and he conflates terms like "monopoly," but at least he articulates in the language of IP, showing that he's read and spent time on the area.

I wish Shapiro would have used more examples, especially for statements like the DMCA causing "sharp decline in available venture capital." Now something like that might make me change my views...

Re: Software Patent of the Week: The Reluctant Inventor

Noel Le — Fri, 18 Aug 2006 12:32:29 -0000

MikeT, check out this article, which you kind of independently, hehe, summarize. http://papers.ssrn.com/sol3/papers.cfm?abstract....

Re: Harper, Levine, and Shapiro on Copyright

Noel Le — Fri, 18 Aug 2006 13:48:06 -0000

***This makes patent and copyright a coherent whole, which is only important for theoretical purposes.***

Actually, unified theories of intellectual property are a part of the "dialogue." I generally don't lend too much faith in this line of research outside of its emphasis on private ownership. The only persuasive article I've read comes from Professor Kitch: "Elementary and Persistent Errors in the Economic Analysis of Intellectual Property," 53 Vand. L. Rev. 1727 (2000).

***I get the sense that the two of you are so engaged in contemporary debates that you struggle with the idea of stepping back and looking at information theory or first principles. That narrow vision may be frustrating your ability to engage at this level...***

Not really. Intellectual property is already a complicated field. Its an inherently cross-disciplinary subject. Even those who don't agree on various policies still standardize on baseline definitions and context. Its not the theories of intellectual property such as the problem of public goods, tragedy of the commons, rent dissipation, etc that are debated, but their applicability and relevance. See Mark Lemley in "Ex Ante Versus Ex Post Justifications for Intellectual Property," UC Berkeley Public Law Research Paper No. 144.

***I would refer to all products of volition and cognition as "intellectual property," of which only a tiny, tiny fraction is specially protected and most of which is abandoned from the moment it is created.***

The difficulty in taking a step back, deriving concepts and following where your curiosity leads is that often you have to coin new terms that don't (already) signify to your audience concrete policy issues and discussions.

Re: Harper, Levine, and Shapiro on Copyright

Noel Le — Sun, 20 Aug 2006 16:48:48 -0000

Enigma, you raise good insights on Jim`s presentation.

Re: Software Patent of the Week: The Reluctant Inventor

Noel Le — Mon, 21 Aug 2006 10:31:07 -0000

The patent holder's view on patents isn't relevant as he's no longer involved in either the licensing, R&D; or product development work surrounding it.

Further, simplifying a patent's claim in order to communicate its obviousness, lack of novelty or generality is somewhat circular in reasoning without citations to the construction.

Re: Software Patent of the Week: The Reluctant Inventor

Noel Le — Mon, 21 Aug 2006 11:27:04 -0000

Show me the citations. I don't have time to read the patent, and I would suspect that you would pick a patent suitable to your goals anyhow.

You've run this software patent of the week thing for a while, but most of your analysis isn't about the actual patent (rather you focus on the wordiness of the claim, the patent holders viewpoints, etc etc- similar to how you argued against Nick Carr in hopes of defending Benkler's book, but you merely presented your own viewpoints while totally ignoring Benkler altogether).

Re: Software Patent of the Week: The Reluctant Inventor

Noel Le — Mon, 21 Aug 2006 14:11:35 -0000

The patent claim states that it covers a "method," so Tim was pretty much critiquing a patent w probably no implementation. Look at the existing art, which simply states "PDA" and other common technologies. I have disagreement w/ its scope, as the patent states that it may cover items not drawn out in the claim, and may be appended. Everyone hates bad patents, this might be one. Tim what kind of research did your friend do to get on the patent?

Re: Software Patent of the Week: The Reluctant Inventor

Noel Le — Mon, 21 Aug 2006 21:19:05 -0000

Very interesting. So, is IBM stock a buy or sell? What do you make of IBM making over $2B/year in patent royalties? And are they merely disseminating innovation across the industry, squeezing rent out other companies or immersing themselves so deep in the patent landscape it would take every patent from TX and CA to make them blink? Oh and how much of its patent related technologies does IBM plan on mixing with its open source offerings?

Re: Railroad Patents

Noel Le — Wed, 23 Aug 2006 01:43:47 -0000

The paper says a few more good things than that:) You cite extensively but only focus on one point in summarizing anyhow. Merges emphasizes how market forces provide mechanisms such as SSOs as balancing factors to increased patenting, thereby obviating the need for silly things like eliminating certain classes of patents entirely. Anyone who has read Merges knows him as a fairly free market thinker who has increasingly warmed to software patents over the years after initial skepticism. Glad to see you writing about him.

Re: Railroad Patents

Noel Le — Wed, 23 Aug 2006 10:34:27 -0000

By "eliminating certain classes of patents entirely" I meant excluding subject matters CURRENTLY patentable.

Re: Railroad Patents

Noel Le — Wed, 23 Aug 2006 10:41:28 -0000

By "eliminating certain classes of patents entirely" I meant excluding subject matters CURRENTLY patentable.

Re: Harper, Levine, and Shapiro on Copyright

Noel Le — Wed, 23 Aug 2006 12:08:52 -0000

Hmmmm. Interesting Jim. Now I see where you're coming from. You're looking for a natural rights theory that ties together intellectual property with information assets (personal information, privacy, identity). You might want to look at European scholarship- as I understand some European countries take a more natural rights approach to personal privacy than the US, I'm not sure if this spills-over to IP perspectives though.

Re: Railroad Patents

Noel Le — Wed, 23 Aug 2006 16:31:27 -0000

I guess my biggest argument about eliminating software patents is how supporters of this move sound like the demise of the software industry will occur tomorrow. The software industry is doing pretty well, and if changes are needed, there should be clear evidence.

Critiquing one patent a week won't convince me to eliminate software patents. Half the time I agree with you that some patents are bad But bollions of dolars in licensing exchange hands every year in the software industry. How do you account for that?

How do you propose eliminating software patents by the way? You sound like you support abrupt changes, as you don't really discuss gradual means such as changing various elements of patenting standards or administration.

MikeT, you should look at this testimony by Professor Dreyfuss from NYU where (I vaguely remember that) she argues against current interpretations of State Street, saying that it should have allowed software but not business method patents. I'd send to you if I could find it.

Re: Railroad Patents

Noel Le — Wed, 23 Aug 2006 17:08:57 -0000

I'm not going to read over your interpretation of patent claims, unless you cite more in your summaries. Remember, you're simplifying a patent claim to prove its obviousness. Your approach itself may be accomplishing your overall goal. If you cite more, I'll have time to review. I'm not dismissing your approach, just that I'd be careful about what policy considerations to draw from it.

I'm not aware of the NY Taxi thing, but if you're calling patents a "monopoly" analogous to organizational or economic monopolies, we should talk further:)

By silly, I meant *eliminating* software patents altogether. The whole issue is kind of "for the history books" as Lemley would say. I view it as a rigid and inflexible way of affecting the software industry, with many unknown implications. Patents have many benefits, only one of which is their doctrinal justification.

Remember, our disagreement with software patents is that you don't think they should be in the system to begin with (my view is that if they meet high standards of patentability, then keep them). How then would you identify a "software patent." I haven't seen a uniform definition- thats why I think simply eliminating them would be difficult. Look at the Professor Mann article I write about here where he discussed 4 or 5 ways of defining software patents: http://weblog.ipcentral.info/archives/2006/06/p....

Re: Railroad Patents

Noel Le — Wed, 23 Aug 2006 18:44:16 -0000

Steve look at Lemley`s article w Cohen on the judicial history behind software patents. "Patent Scope and Innovation..." Tim if you do this patent of the week thing for ten years you will not even have touched on 1% of current software patents (Lemley estimates at least 100k of them). How innovation worked 30 years ago in the 1970s seems to be your goal? Do you know how innovation works? Forty economist gathered at the FTC 3 years ago and agreed they didnt. But they knew the industry and its policies have evolved since the `70s and they proposed changes that worked w the existing policy landscape ... And the industry is doing fine so why change things when your only point of reference is innovation in the 70s. Public policy should consider the way things are and what has actually transpired, not just how things should be. I haven`t found anyone to make the case against software patents and I`ve looked at 95% of the literature. There is one person very very persuasive against software patents, but Ill leave OSS supporters with their current cast of experts (Moglen, Lessig, Benkler:):) PS your monopoly analogy is OK, but I would apply "monopoly" only to what courts would enforce in the claim, not to the revelant technology or product/consumer market. And what is thing of being worked up about software patents. All of this fear of litigation wars which haven`t surfaced, and if it has its because of patent trolls.

Re: Railroad Patents

Noel Le — Thu, 24 Aug 2006 14:35:42 -0000

Doug, nobody ever said policy or law makers craft law by sitting down, having friendly chats and leaving with everyone happy. But hey, thats democracy.

Steve, Lemley and Cohen propose a bold step, as it calls for an "assertive" right" that would rid any interpretative ambiguity that might deter reverse engineer patented software.
Mike, I stated that eliminating software patents "would *not* simply rewind time," as that would be impossible. Of course, if we get rid of software patents, we'll end up with a patent policy similar to that we once had. Yet the unintended consequences I speak of after eliminating software patents doesn't just relate to how industry would innovate without these patents, but to the transition of over 100,000 patents suddenly having no status. The most difficult aspect of Napsterizing software patents, besides IBM losing mass royalties, are whether other forms of IP or contracts can sustain cross-licensing agreements, and whether the USPTO can identify exactly what are software patents.

***We know exactly how the software industry would work without software patents: the same way it worked for the first 30 years of its existence.***
Again, I'm enthralled by anyone who knows how innovation works. The full-fledged private technology sector didn't thrive before the 1970s. A lot of funding came from the US Govt through procurement and federal contracts. I'd take a later time period, perhaps the 1980s, as a milestone on which to reference a point of time where the software industry thrived without patent protection. We can speak more about this later...

***Whether it's politically feasible to eliminate them, and how best to manage the transition, are of course difficult questions. It may be that for practical reasons eliminating them is too difficult to be attempted.***
Tim, this is Lemley's point, and one I believe we agree on but in different terms.

***do software patents promote the progress of science and the useful arts? I contend that they do not, and I have yet to find anyone who makes a coherent and well-informed argument to the contrary.***
Tim, often policies serve functions for which they were not originally intended. Sometimes their value lies elsewhere than why they were conceived and implemented. To propose eliminating software patents because you can't find proof of how well they serve their doctrinal justification, without considering their secondary benefits and without direct proof of negative consequences leaves a lot unconsidered.

If you've not found any justification for software patents, also consider that you aren't providing any arguments against them. I'm more inclined to look at MikeT's arguments, because he speaks from the perspective of a programmer with valid concerns. Since you're on the public policy side, you have to make coherent "policy" arguments.

Re: ATI: Open Source Not Welcome

Noel Le — Thu, 24 Aug 2006 14:45:40 -0000

ATI Technologies needs some incentive to open source its drivers. Hey, you can't hate a company for not doing what you want it to, unless you appeal to its self-interest (not your own).

So, what do you fellas think of open source DRM. I'm not inclined to say they're "fundementally" at odds. www.drmwatch.com/drmtech/article.php/3094761

Re: ATI: Open Source Not Welcome

Noel Le — Thu, 24 Aug 2006 15:52:23 -0000

Thats an intersting comparison between encryption and DRM Tim.

About ATI, can't you just go use another product. The concept of substitutions is something we learn in life. If you can't have one thing, go to the next or find something better.

If everyone reacts the way you do, then ATI will be forced to open source its drivers. And if it does so because of market pressure, great...

Perhaps ATI is gaining something by the "bad policy regime" you speak of. You can't just go to a company and say "you have to consider my interests and rights in designing your products; right now you're not because bad policy allows you to follow your own interests."

I wrote a bit about seeking substitutions because of fragmented (non-interoperable) DRM systems: http://weblog.ipcentral.info/archives/2006/08/f....

To summarize the LECG researchers:
***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.***

Re: Another DRM Train Wreck

Noel Le — Fri, 25 Aug 2006 11:45:46 -0000

Yes Doug, precisely. Tim is enviable... he knows how innovation works:):):):)

Tim assumes the industry is hurting. ITS NOT!! He thinks that if nobody provides him with an example of a good patent, none exist despite him critiquing not even 1/10 of 1% of software patents!! etc et etc.

I actually worked in the software industry for years, and no, I'd rather not be the head of any agency...

Re: Software Patent of the Week: Activating Perverse Incentives

Noel Le — Fri, 25 Aug 2006 11:56:12 -0000

Is this an instance of a patent troll?!

This should give you open source folks some hope. Now, imagine that you have a patent, not just any patent, but an obvious patent. Its going to cost you money to enforce it (I think the average cost of litigating a patent is around $2M but that figure might be outdated). So who do you go after? You go after the big guy with the cash, like Microsoft, or even a competitor. Why not go after a smaller player? Well, what would you gain from that, are you going to prove you're right and that they're infringers? I've not heard of anyone enforcing a patent just for the sake of validating it.

***Strangely enough, the other patent was filed in 2002 and issued in 2004. It's hard to see how Windows XP, released in 2001, could infringe it***

Interesting. Perhaps a submarine continuation...

Re: Another DRM Train Wreck

Noel Le — Fri, 25 Aug 2006 12:40:40 -0000

Once again, everyone hates bad patents. While we agree on that I want to point out something.

Yes, Apple, Microsoft and RIM are the latest victims of the patent system. They are examples of big companies getting trolled by smaller guys wielding obvious patents. Thats quite the opposite from typical scenario anti-software patent advocates propogate (big companies going after smaller ones).

Re: Another DRM Train Wreck

Noel Le — Fri, 25 Aug 2006 13:33:55 -0000

Yes we do agree there's a problem with the patent system Doug. Its what to do about it that draws diagreement.

You see, I've suggested that the patent of the week posts would be more informative via several changes. One of my suggestions of adding citations, Tim did this week, and I found the post much more informative than previous ones.

Another suggestion is to include how a a patent has been interpreted by the courts. Even when a patent has gone through litigation and is the focus of Tim's attention, he still only criticizes the claim, which I don't think is that informative. An analogy: Can you tell the value of a statute by its words, or do you look at the judicial or agency interpretation. You simply don't know enough by the text alone.

Tim's position is that bad patents shouldn't be in the system to begin with, but by his methodlogy he can at most conclude that badly constructed patents don't belong in the system. This is a far way for justifying the elimination of software patents.

Re: Another DRM Train Wreck

Noel Le — Fri, 25 Aug 2006 15:16:25 -0000

Mike, you hit on the topic of prior art, which deserves a thread in itself...

Tim, by citations I mean the part of the patent claim from which you draw your conclusions. In this week's post, you compared the summary to the main body of the claim, found them almost identical and argued that in essence the patent wasn't saying much. You tied your argument to whats actually expressed in the patent, rather than just to your opinion.

The cost of litigation reflects a flawed system, with vague patent claims adding to the issue. Yes, we agree. But how does this prevent you from presenting a patent's legal interpretation/ eforcement? That would bring you closer to your goal of proving the need for banishing software patents. You're still only addressing patent administration, while your conclusions on software patents assume that you've presented evidence of their value/function. From this methodology, you hop over all administrative policy options to argue for the far reaching move of eliminating over 100K patents.

Re: Welcome Hance Haney!

Noel Le — Mon, 28 Aug 2006 10:57:50 -0000

Before you flame somebody, why not wait to see what they have to say. I've personally found Hance's writings very informative, well cited and thoughtful. No, I don't agree with intelligent design, but unless Hance writes about that, why raise and brood over the subject.

Re: UK Censors Tom & Jerry Cartoons

Noel Le — Tue, 29 Aug 2006 16:32:55 -0000

Well, I have to say I'm glad my tax dollars didn't go to Ofcom.

Jerry the mouse never looked like a smoker. Tom the cat though, hmmm, you could sense he would do anything to please a female cat, like light up.

Re: The Technology Liberation Front » Archive » On Hance Haney and the Discovery Institute

Noel Le — Thu, 31 Aug 2006 12:31:52 -0000

***Could there be some fear that Haney will reveal himself as a reasonable sort, hence casting doubt on the prejudice that ID supporters are all ignorant or sly schemers?***

I think you hit the nail square on Eric.

Its evident reading Hance's writings that he's well informed, with a steady policy voice. I've never met Hance, I'm only judging him on what I've seen him write (which is all thats important on this matter, at least to me).

Re: The Technology Liberation Front » Archive » On Hance Haney and the Discovery Institute

Noel Le — Thu, 31 Aug 2006 15:42:52 -0000

Thats funny. The people who don't want to see Hance on this site talk about ID more than he has; and Hance has written more pursuasively about tech policy than have those who don't want to see him on TLF.

Interesting that someone brought up Nietzsche earlier; Nietzsche one of the most misunderstood figures in history. I dabbled a bit in philosophy in my younger years (and wish I still had the time to). One of the best ways of mis-reading Nietzsche is to read his books as autobiographies (its also the easiest way if you don't understand his ideas). Those who grasp philosophy on the other hand approach Nietzsche objectively for concepts, themes, arguments, characters, plots, etc.

This lesson also applies to technology policy. When you read Hance's writings, if you judge him by his affiliation, then you're totally sidestepping the issues as well as the reason why you come to TLF. On the other hand, if you read him for his insights and presentation, you might find that he understands far more than other writers you give favorable presumption to.

Re: Hayekian Insights on Intellectual Property

Noel Le — Sun, 03 Sep 2006 08:58:30 -0000

IP is already decentralized because it enables private actors (rather than a central government or state entity) to hold, prospect, license and commercialize copyrights and patents. See Edmund Kitch, Elementary And Persistent Errors In The Economic Analysis Of Intellectual Property, 53 Vand. L. Rev. 1727, 1727 (2000).

*** Netflix lacks the information necessary to determine the best way to develop the online video rental business... (Wu) explores the various ways that a monopolist's lack of information is likely to hamper its ability to drive technological innovation***
Are you implying that by its patents, Netflix (or any other patent holder) controls the entire entry and competition dynamic in its market? This is using the term monopoly a bit broadly:) But, for now I'll just say it doesn't matter whether a patent holder such a Netflix knows how to drive innovation in its industry. Competitors can either "invent around" or seek licensing arrangements with a patent holder. Rarely will a patent confer an absolute monoopoly over a market such that the patent holder stifles innovation by having limited informaiton (and if you're aware of any absolute monopolies, please let me know).

You sure give Netflix a lot of credit. Somehow, in your review of Professor Wu, you move from saying Netflix has a patent, to Netflix has a monopoly over online video rentals, to arguing that by having a patent, and hence monopoly, Netflix introduces economic inefficiencies consistent with a socialist state. Again, this is the result of very very liberal use of the term monopoly:)

*** supporters of stronger (IP) protections***
BTW- Who is in support of "stronger" IP protections? As you may know, many companies and independent organizations considered "supportive" of IP have submitted amicus briefs and offered Congressional testimonials calling for more stringent patenting standards. I'm not aware of anyone trying to make current IP protections "stronger."

Re: Hayekian Insights on Intellectual Property

Noel Le — Mon, 04 Sep 2006 16:20:34 -0000

First of all, current IP policies actually enable de-centralized industry structure, thus creating the opportunity for small firms to specialize and compete in markets, and for the industry in general to license and thus diffuse innovation through copyrights and patent exchange. See my review of Professor Chesbrough's book on "Open Innovation." http://weblog.ipcentral.info/archives/2006/08/o...

*** He (Professor Wu) isn't claiming ... that this is a knock-out argument (decentralization) against (IP) ... he's pointing out that this is one of the factors that needs to be weighed when evaluating IP policies.***
If current IP policies perpetuated the dominance of big tech firms, prevented the viability and entry of new firms, and if the industry thus became stagnant with little innovating activity, Professor Wu's theory may be more important, or at least immediately relevant to tech policy, but this isn't the case.

***Noel, centralization and decentralization are on a spectrum. ***
Despite our disagreement over exactly "what is (de)centralization" lets make sure we call the industry more/less centralized, rather than either centralized or decentralized. Personally, I don't like where this discussion is going. We're heading full speed into a debate on "what is the optimal level of (de)centralization" which will just draw us into a discussion on "whats the optimal level of innovation." Uhh. As long as there is a non-concentrated software industry (see below) that's healthy and productive, abstract debates that don't consider the reality in front of us, are senseless (you don't believe that the tech industry is doing fine, look at the stock market).

***Stronger IP protections push things in the direction of central planning, in the sense that more economic decisions are made by large, hierarchical bureaucracies like Microsoft and the DVD CCA, rather than by individual entrepreneurs. Obviously, it's a lot less central planning than having, say, the entire software industry run by a single government-protected monopoly. But on the margin, more expansive (IP) rules mean more central planning.***
In contrast, the software industry is very NON-CONCENTRATED. That means a significant amount of innovation, and patenting, occurs with small companies; as illustrated by the amount of turn-over in leading firms, and the rapid rate of entry of new industry players. (see some work from Professor Merges http://weblog.ipcentral.info/archives/2006/09/m...). And yes, companies like MSFT and IBM are big, and they hold many patents, but there's a significant software industry beyond them that holds important IP assets, and commands influence in important markets.

***... liberal licensing mitigates this effect to a large extent. However, licensing still requires some foresight on the part of the licensor. The licensor might become wedded to a particular licensing model that works well with certain uses of a patent but not others. And some companies, for whatever reason, might opt not to license at all.***
I keep bringing up the concept of substitutions in my discourse with you. If a company has a patent, even if its "weded to a particular licensing mode," competitors can STILL invent around, or licensing essential technologies from other companies. If these competitors are actually innovative, they might invent something new or find a new approach. These are activities that we consider "market activities."

***Richard, I don't read him as taking any particular position on the desirability of intellectual property in general, for or against.***
Actually, Professor Wu advocates, as you do, the complete elimination of software patents. I hope he takes this idea to some patent reform testimony, as its neither a serious nor viable policy option, and his argument for it is even worse.

Re: Hayekian Insights on Intellectual Property

Noel Le — Tue, 05 Sep 2006 15:11:48 -0000

I'm personally in support of software patents, still I think various critics of these patents have good arguments. Knuth isn't one of them...

Re: MySpace vs. The Labels

Noel Le — Tue, 05 Sep 2006 16:16:55 -0000

This would be a positive development if it drives down costs of music distribution for individual artists and enables them to make more profit without the "Studios." But I still question the revenue model. If MySpace offers music w/o DRM, then why would users pay for the songs when they can just copy them from their pals.

Re: MySpace vs. The Labels

Noel Le — Tue, 05 Sep 2006 17:22:00 -0000

Again, piracy is something that happens on a scale, its not whether it happens or not, but to what extent. Do you think copying will increase when its legal to get files from your pals?

How will artists get $20-30M in capital to invest in large scale productions unless there's a revenue model with sufficient profit margin?

So what is stopping your proposed business model from happening, if artists, consumers and online mediums all have the incentive to pursue the course?

Re: MySpace vs. The Labels

Noel Le — Tue, 05 Sep 2006 17:51:24 -0000

***MySpace has opted to offer the music in MP3 format, unencumbered by DRM***

Oh ok, I read this sentence as saying it would be legal to copy songs. You're saying that it won't, but still, any artist who releases his songs in MPR without DRM is going to factor that into the cost of downloads.

I still question the revenue viability with MySpace though. Sure you might get some starter bands, or others looking for easy ways to distribute samples, but nothing to replace the "Studios."

$20 million to produce an album was only a guess, lets just say about $1 million for our purposes here(although the number can run beyond $20 million).

Re: MySpace vs. The Labels

Noel Le — Tue, 05 Sep 2006 19:18:48 -0000

I heard some statistic on a Michael Jackson album being ridiculously high to produce, but that may be an exception. I also might have combined both CD and video production, so the number is no where near to $20 million.

Still, how will artists recoup their investments. Are you going to argue that with today's technologies, such minimal investment is such that copiable downloads will still pull profit. Even if having MP3s downloaded without DRM from MySpace will be akin to getting CDs with (breakable) copy protection, it will be easier to copy the MP3 file, and thus more piracy will result. Musicians who go to MySpace may do so because the publicity is more valuable than any profit they're capable of right now; but when they can pull a profit they will (and might resort to things like DRM:).

So, back to my question. ***So what is stopping your proposed business model from happening, if artists, consumers and online mediums all have the incentive (as you argue) to pursue the course?***

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 10:23:26 -0000

Eric, anyone who ever loses on the stock market will tell you that very seldom do things go as planned despite calculations on every conceiveable risk and incentive.

I'm not very astounded when someone neatly draws up a new business model and allocates "optimal" incentives to all parties involved, yet projected developments never materialize. There's often a miscalculation of incentives for those with the largest potential risks and profits (here, its the artists).

I'm not sure I buy Tim's arguments that "DRM-encumbered music had the early lead because the largest incumbents insisted on it" as a reason why non-DRM music does not currently dominate, it may well be the reason why non-DRM music turns out to never dominate.

Now, I'm all supportive of businesses with lower margins that can force incumbents to lower prices (that's "competition"), but I'm skeptical. Here's why...

I'd still like to make sure current profit levels for artists can remain where they are with few inherent profit limitations from DRM-free downloads. Some artists may still feel that DRM will benefit them, and if thats not an option w/ eMusic and MySpace, they may still go to the Studios, or at least to Internet mediums that enable DRM as well as DRM-free MP3s.

If eMusic and MySpace get big in digital download markets, the Studios may yet dominate the music industry, as I don't see major artists needing to sell directly to users if they're happy with their current paychecks. Is there any widespread evidence this is not the case. Will artists start doing their own promotional and marketing work because of this. Even if true, at most eMusic and MySpace may serve the lower and middle market artists, and those the Studios don't see enough profit potential in to offer contracts to. But I highly doubt they will replace the Studios.

Honestly, some of this sounds like a stealth argument against DRM clothed in language that portends to account for the needs of those with the most to lose (artists). The justification sounds like: "piracy already happens, so why not integrate it into the business plan and get rid of DRM which has costs more than it has done good, we'll use the reasoning that profits will still accrue to creators as reason to get rid of DRM." If business models like eMusic and MySpace never turn out, it might be because incentives enabled by DRM are underestimated.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 11:10:32 -0000

Well, Tim, with ripping CDs, you're limited to the number of songs contained on the CDs that you or your pals buy. With MP3s, you're limited to the number of songs you or your pals download. Is it easier to buy a CD to copy or simply download an MP3? I'd say its easier to download an MP3, you can do it in the comfort of your home; and thus there will be more availability of songs to copy and send around. Whether or not the difference is significant enough so that there will be more piracy w/ MP3s is the next question- its an option I proposed when looking at non-DRM download businesses, but not one I have definite answers on.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 11:45:28 -0000

...fitting increased sales into my hypothesis, piracy would not grow linearly with MP3 sales. It would increase at a greater rate per sale than with CDs.

I see that you're trying to justify this business model. You see it as an economic case against DRM. I'm skeptical though (as I am with most things) because you spend more time justifying and downplaying piracy than you do describing the incentives for artists.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 12:05:56 -0000

***Noel, there's a big hole in your argument there. All it takes is one person to buy the CD, then everyone can have it. With iTunes making ripping so easy for everyone, it's not even an issue anymore. Just put the original CD in, click the import button and that's it.***

Hey, I'm not saying piracy will definitely increase to a significant amount with MP3 downloads, I'm just raising the issue.

I disagree though that CDs are *definitely* as easy to copy and distribute though. Maybe its because I'm lazy, but I've downloaded rather than buy CDs for the past few years. I'd be more inclined to download more songs and send them to friends, than to have to go out and buy a CD or wait til one of my pals does.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 12:18:50 -0000

Uhhh, I've said that it *may* be easier to copy MP3s because its easier to download them than to buy CDs and rip them. Do you need me to copy/paste this sentence again for you. I've basically done it 3 times.

Now for your question. How will your business model be profitable for artists beyond their current revenue streams. Why will they switch. You spend more time downplaying the effects of piracy than you do explaining the viability of your new incentives and profit model.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 12:49:14 -0000

I'm not saying there is definitely a "significant" differential between CDs and MP3 downloads. Tim seems to want a definite answer. I don't know the answer, do you?

I raise the issue b/c I think its important to discuss the interets of the biggest stake holders (artists), not those who will gain the most for less (users.. even though I am one).

Putting aside the issue, there are many more things about Tim's post worth discussing.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 14:13:35 -0000

***The moral sense of stealing from a large corporation is very different than stealing from an individual artists.***

OK, Robinhood, what happens when individual artists become big time stars. Eh? Is there a cut-off for when its "morally" right or wrong to steal from them. Perhaps MySpace should advertise this on its site so artists can feel protected from being ripped off as long as they're living in their cars.

So, Enigma, tell me. Will the MySpace business model work at all with DRM-protected files. I know MySpace is hosting files w/o DRM, but perhaps a competitor will rise up, and offer MySpace's low margins w/ DRM. Who do you think artists will flock to.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 14:40:25 -0000

I think the idea can pull a profit, to what extent though I'm not sure.

OK, so now the question turns to whether there will be any limitation on piracy. You're saying there will be no piracy cops...

What is going to stop a "mirror" P2P site from setting up, automatically downloading each new song that comes onto MySpace, and then making those files available for free to users. That way, a song only needs to be bought once, and then distributed without limitation to other users.

I can't imagine a music service that offered absolutely zero DRM protection meeting its maximum profit potential. Thats beside the point for now. But why not offer users the choice to either buy a DRM protected file for a bit less, or non-DRM files for a bit more. This gives artists more options, and more importantly, may give them extra security and incentive to make their content available.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 14:43:10 -0000

MikeT, can you re-write your previous post in French?

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 15:14:48 -0000

OK, I guess I was too optimistic about your business forecasts.

You finally got at what I was after all along: that your business concept would facillitate piracy exponentially: all you have to do is lure the little artists to hand over their hard work, promise them you'll treat them better than the big bad guys in Hollywood, take their songs, and while they're lamenting over piracy to magnitudes never seen by mankind, you gleefully talk about how you proved that music services can work without DRM and how you brought the labels down.

Who wins? It doesn't sound like you're looking after the artists. This whole thread was essentially a criticism of DRM on your part, clothed in a business prediction that you prettied up in language about low margins and freedom of artists from the Studios.

Re: MySpace vs. The Labels

Noel Le — Wed, 06 Sep 2006 16:01:58 -0000

Mike, uhhh, please wait for another thread. I will say this though, there is a lot of benefit in uniform federal IP laws.

I actually don't see a need for any natural rights analysis for copyright. I hope Jim Harper doesn't jump on me right now, but I view copyrights in-line with most other regulatory policies: strictly utilitarian (http://weblog.ipcentral.info/archives/2006/09/d...).

Re: MySpace vs. The Labels

Noel Le — Thu, 07 Sep 2006 12:57:23 -0000

Its not anger over MySpace Doug. I wish them good luck. If they drive down prices, I'll buy their songs.

Its the way folks hype MySpace up as the downfall of the studios, and using it as an excuse to argue against DRM, when they obviously don't care about artists (the producers) and the revenue model is still questionable. Its funny that even if something like MySpace had to offer DRM options to artists to let them pull bigger profit, most on this board would argue against that (because artists and profits are not their main goals, bringing down the studios and ridding DRM are).

***Noel, you keep on framing this in terms of what benefits the producers but the internet empowers consumers more than producers***

Hmmm, well what do consumers have without producers, and visa versa. You have to consider both sides, and here the incentives of artists are not adequately considered.

Re: Maybe Not Free as in Beer, but Awfully Cheap

Noel Le — Thu, 07 Sep 2006 17:22:42 -0000

I'm still waiting for the Schumpeterian creative destruction to happen.

Enigma, you point out evidence of a creative destruction cycle, or one in process, but not one that has fully manifested or proven itself. Too many things are still measured by their potential or proof of concept (lower margins in Linux development), but not by market share or revenue (the actual impact on the market).

Re: Maybe Not Free as in Beer, but Awfully Cheap

Noel Le — Fri, 08 Sep 2006 02:43:09 -0000

Woah, when did I call anything a "niche" product. Perhaps limited in potential, with a low caliber profit cap, even a product with no potential. But I never called anything a niche product.

I'm always happy about lower prices. What I'm concerned about is lower quality. So your FOSS pals can do their thing, and then I'll invest. Right? Isn't that how markets work? Remember the market?

Yes, thanks Enigma for putting words into my mouth. I know you are questioning the foundations of your creative destruction at this moment. I would recommend Dostoyevysky's Notes From the Underground. Duhh.

Re: Heads or Tails

Noel Le — Mon, 11 Sep 2006 16:15:17 -0000

Greg, would it be OK to copy/paste your paper onto Wikipedia?

Enigma, perhaps you can do the honors.

Re: Apple and Disney

Noel Le — Wed, 13 Sep 2006 02:46:27 -0000

Ah yes, market forces. So how do get the Studios to sign with Apple, Apple to allow more flexibility in its product line or Amazon to get past v1.0. You offer incentives, perhaps through competition. If you think anyone deprives consumers, does not consider market trends and relies on subpar revenue models, take Tim`s critique and visit your nearest tech or entertainment VC. Or you can just go with other products.

Re: Surprise!

Noel Le — Wed, 13 Sep 2006 03:11:20 -0000

Hmmm I admit Im a fan of DRM, but the digital lock analogy is one Im not fond of. You did a good job setting up the strawman but I dont think thats the prominent view. DRM as digital contracts makes more sense, and should prevent folks from (at least a few) unwelcomed surprises when they read the fine print.

Re: Computer Hacking or Political Hackery?

Noel Le — Wed, 13 Sep 2006 16:22:12 -0000

***Yet not one of those stories features a quote from a computer science professor, a webmaster, or anyone else with technical expertise in administering web sites.***

Hmmmm, maybe there are not enough "bright lines" to distinguish these techies from media trolls who love to grab the lime-light and pass themselves off as experts of whatever-kind.

Wait, Tim, aren't you a web expert. Give them a call.

Re: Computer Hacking or Political Hackery?

Noel Le — Wed, 13 Sep 2006 19:44:24 -0000

I guess "Hacking" can join "Monopoly" as the most mis-used term...

Re: Barnett Butchers iTunes History

Noel Le — Thu, 14 Sep 2006 11:32:00 -0000

Yeah, somewhere along Apple's success in iTunes/iPod, it forgot to guarantee Tim Lee his freedom and culture to tinker.

Just switch products!!!!

Re: Barnett Butchers iTunes History

Noel Le — Thu, 14 Sep 2006 14:09:02 -0000

Barnett's theme is the intersection of antitrust and IP- which makes you think of patents, but yes, Doug, his example suggests he's talking about the DMCA.

***never mentioning that Apple's monopoly on iTunes compatibility is driven by the DMCA rather than market forces.***

Hmmm. Setting the term *monopoly* aside, Barnett's argument is that users buy from Apple at their own free will, so aren't users acting at their free will an indication of market forces?

*** "problem" wasn't that it was difficult to an build online music store users would like. The problem was that the labels had to be dragged, kicking and screaming***

Barnett does not suggest it was "technologically" difficult to build online music systems. It was getting all the parties together (labels, consumers) to build a market. Like them or not, the labels are part of the market. You have to give them incentive too. In any case, I don't think you and Barnett disagree here, only that he sympathizes with the labels' hesitancy.

***But the bigger problem with his history is that there's no mention of MP3.com.***

I'm not familiar with the history of MP3.com, but I will say, based on your description, that perhaps MP3.com should have hired more negotiation lawyers. Had they, they might be in Apple's position today.

***Apple shouldn't have to lift a finger to interoperate with competitors. Their competitors should do the work, using the old-fashioned technique of reverse engineering.***

Tim, whats your position on this statement from Doug.

Re: Barnett Butchers iTunes History

Noel Le — Thu, 14 Sep 2006 15:59:01 -0000

***Apple's exclusive rights over the iTunes format***

Tim, you use monopoly to describe any situation where IP protects against access. The more proper usage would be to cite monopoly over a market (music downloads for instance), not over a set of code, functionality or interface (Apple's iTunes).

The language of IP is ambiguous I grant you that. But just as you understand the nuance in the term "property" when talking about IP, there's similar nuance with the term "monopoly."

MP3.com sounds like a good business idea, run into the ground by bad businessmen. Companies struggle all over the world everyday, some sink, go through lull periods, some succeed but only a few go on to dominate their market. Good job Apple!

Re: Barnett Butchers iTunes History

Noel Le — Thu, 14 Sep 2006 16:36:08 -0000

***Apple has a legal monopoly in the market for iTunes-compatible MP3 players***

OK, that makes more sense. When you stated above about Apple's "monopoly on iTunes compatibility" and Apple's "exclusive rights over the iTunes format" it sounded like you were saying the iTunes DRM system and interop protocols themsevles are the monopoly.

Wait, so why hasn't anyone revived MP3.com now that there's more certainty in the legal environment...

Re: Barnett Butchers iTunes History

Noel Le — Sat, 23 Sep 2006 19:16:59 -0000

Oh OK:) Now can you share why it is butchery to talk about the history of iTunes and the iPod w/o mentioning MP3.com:)

Re: Spontaneous Order Is Counter-Intuitive

Noel Le — Sun, 24 Sep 2006 18:17:40 -0000

Per professors Chesbrough and Wu, we already see decentralized production; partially through IP enabling firms to specialize and then license their IP assets. I hand it to you though- based on your posts one would have to refute Darwin and Hayek to disagree on the potential of FOSS:) Or one can just say he disagrees w your reading of them:) Based on your post, FOSS should beat proprietary counterparts in most technology spaces (like office apps, accessibility features) and Wikipedia should be 100 times authoratative.

Re: Open Source Voting is No Panacea

Noel Le — Thu, 28 Sep 2006 23:10:23 -0000

Hmmm. You explain a lot, but I'm not sure where you get the evidence or proof.

What are current indications of error/fraud in computer and non-computer voting. I'm not talking about the potential for such things, but actual developments that lead to your concerns.

Re: Listen to the Stopped Clock

Noel Le — Sat, 30 Sep 2006 19:55:29 -0000

I believe MSFT created its own digital formats for fear of licensing implications with MP3.

***the fundamental purpose of DRM is to prevent unauthorized devices from accessing content***

Hmmm. Funny, Tim, it sounds like DRM is a goal within itself, as you never explain or qualify it any further than to state its effects on interoperability, at least not directly.

But you're clever Tim. Yes, very clever.

I'm sure you're more than aware that the goal of DRM is not just to "control" interoperability, but to manage the flow of and access to content between online and peripheral services/devices. This in turn supports business models. DRM is merely a mechanism for securing revenue in the process.

The mechanism to what business models you ask? Well, Tim, your answer is that DRM is the mechanism for sub-optimal and impractical business models. I don't care to list the posts you argue this in (basically, all of your posts on DRM), but will point out your argument, which surfaces when all pieces of the puzzle are put together: since artists can make money selling T-shirts and trinkets, DRM does not serve business purposes. Without the qualification of enabling and facillitating business models, the only remaining goal of DRM then becomes to simply cut-off interoperability.

You don't say it directly, but your chain of reasoning, Tim, implies that you want to prove DRM cutting off interoperability as the goal in itself of content and service owners. Such villification, I'm afraid, is simply uncalled for.

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

Noel Le — Sun, 01 Oct 2006 17:46:40 -0000

***We've written before about the shoddy methodology that copyright industries often use in studies purporting to show the costs of piracy. ..Some infringers would have purchased the work if they'd been unable to get a pirated copy, but a lot of others would have simply done without it.***

Yes, that sounds like a universal justification for theft:" if we can't steal it, we wouldn't buy it, so just let us steal."

***One of the great libertarian heroes of the 20th Century was Milton Friedman, who stressed that pumping more dollars into the economy could not create new wealth. ..money is not the same as wealth... putting more dollars in peoples' pockets will not increase the number of goods and services they can consume. ..it's downright creepy to see a supposedly free-market organization falling so easily into the same fallacy of confusing money for wealth.***

Uhhh, I believe the economic lesson is that simply pumping money into the economic does not necessarily create wealth. Still economic activity is essential for wealth, consumer spending power and economic transfer. That unqualified inflow of capital does not generate wealth does not downplay its importance. Your argument is akin to "since VC and private investment money do not necessarily generate innovation, they are not essential to it."

***I'm annoyed but not surprised when the BSA or the MPAA puts out a shoddy and misleading study.***

They'd say the same about hysterical policy ramblings depicting how artists can ditch DRM and make money selling trinkets and T-shirts.

***At the Show-Me Institute, we don't hide the fact that we've got a free-market agenda, but we also pride ourselves on our independence and intellectual integrity.***

The Show Me Institute is not involved in digital economy research, so its not comparable to BSA and other venues that specialize in that part of the economy (that is, if you consider technological innovation as part of the economy, rather than the subject of philosophical inquiry by those who do not grasp the concept of capital).

***Our first allegiance is to the truth, and we try to avoid using misleading statistics or making disingenuous arguments.***

It scares me when think tanks seek "truths" or other funny goals that end up leading them to argue their way into madness. Generally, they approach economic and innovation policy through philosophical lenses, and end up arguing for unproductive views that would drive American innovation into the ground. Policy is not truth seeking, it is not philosophical inquiry. The point of policy is to craft understanding and facillitation of innovation. Do you disagree.

Re: Civility and Economic Debate

Noel Le — Mon, 02 Oct 2006 13:04:46 -0000

Tim, various industry groups and think tanks use misleading statistics to put piracy in a good light, and to belittle the contributions of the digital-entertainment industries.

It scares me when these fanatical groups say they're fighting for the consumer, when all they're doing is badgering artists and programmers who work for a living. And what they propose, the "freedom to tinker," is neither productive, innovative nor even useful. Its merely a way to stake claim on someone else's work.

The "freedom to tinker" is not diminished nor eradicated when a hobbyist does not have access to specific technologies, such as the XBox, iPod, etc. The concept of substitutions is well ingrained in the antitrust and patent literature, so I'm not going to get into it here, but will point out that tinkers should make their own products and content, and tinker with those.

Re: Civility and Economic Debate

Noel Le — Mon, 02 Oct 2006 13:49:30 -0000

Ahhh, economics. Nobody really understands it. Even economist acknolwedge that one of the most important aspects of their field is to agree to disagree.

A remember an econ professor at my alma mater had just won the Nobel. There was a little ceremony in the University square. When one student asked if the new laureate could provide some stock tips, the professor said that the best way to do well in stocks is not to study economics.

As far as the study, what you take as a concrete calculation of loss via piracy, Tim, I see as an economic projection. Thus, its not essential whether actual economic impact is exactly what IPI estimates, but whether their assumptions would drastically broaden the area between actual loss and projected loss. But your claim is the assumption that monetizes piracy costs is fallacious because consumers would not purchase a product absent their ability to pirate, is not quite right. Perhaps to some extent you have an insight, as the assumption may increase the difference between actual and projected losses, but it is a basic analytical tool to monetize activity falling in the economic space with which a study is concerned. Thus I would not call the study fallacious or misleading, but perhaps incomplete to those not used to reading the literature.

I can look further at the study and comment in more detail, but not until the end of the week...

Re: Civility and Economic Debate

Noel Le — Mon, 02 Oct 2006 14:18:10 -0000

Again Tim, economics deals with monetization, or at least quantification generally. Recall in antitrust/patent analysis, you have future innovation markets and damage calculations for products and injury that do not even yet exist. Just putting this in, although you admit it is a minor point in your critique.

Look at page 8 of the report. Do you disagree with the breakdown of $20B.

Re: Civility and Economic Debate

Noel Le — Mon, 02 Oct 2006 21:06:45 -0000

***The fact that you repeatedly opine that there's no way to make money when something is given away for free is so far off the mark, it's hard to know where to start. Plenty of businesses are based on giving away stuff for free.***

Mike, the group I call fanatical is mainly the Free Software Foundation. Then perhaps EFF (strangely, EFF's spinoff lobyying group, CDT is very respected, hmmm) although I will say at times EFF seems genuinely concerned with consumers. So disagree if you will.

Mike, are you really saying folks can live on promotions and selling trinkets. Selling one thing to profit off the complementary is one thing, but to have the exception subsume the whole is another.

***If you're such a believer in the free market, what is wrong with letting the free market sort these things out? Your complaint seems to be that those who successfully bring a product to market are taking someone else's work.***

Yes, I argue for free markets, and in my view its working. The American innovation economy is the pride of the world. Let the artists and entrepreneurs have their DRM and IP rights so we can keep it that way.

Where did you get the notion that I argue commercializers ripping off others?! That should not happen, and I'm not sure where you gather my viewpoint from. Unless you mean those who want to give others' content away for free so they can sell ads. Yes, I'm guilty of calling these thieves.

***the claim that the "freedom to tinker" is "neither productive, innovative nor even useful" shows a complete ignorance of the history of invention, innovation and progress. Nearly all useful innovation is based on improving on or "tinkering" with the ideas of others.***

You're talking about incremental innovation. I'd personally characterize the software industry a bit less with this kind of innovation, but you have a point. I will scale back my claim though, and admit that tinkering has its value. However, I'd mark the history of technological innovation with many pioneering inventions at its outset, followed by small incremental improvements. Thats called maturing technologies. The fact that you argue the maturity phase of a technology as marking the entire innovation process is something we can discuss further if you'd like but will tell you that you might be generalizing a bit on your innovation theories.

Tim, I have to look at the whole report, but absolutely don't have time now. I will say this though. Is the measurement in terms of absolute dollars, dollar figures representing economic activity or some other metric.

Re: David Friedman on the Gift Economy

Noel Le — Mon, 02 Oct 2006 21:21:48 -0000

Its one thing to observe non-monetary forms of value exchange, but to equate the capital structure enabled by IPRs with a pat on the back is another.

What could otherwise be seen as dry cost under-cutting, peripheral/complement based business strategies, having to give away goods for free, or simply ditching dead-end technology products but giving the code to posterity, have somehow gained religious significance to those who want to turn the gift economy into an assertive agenda.

***pretty much all human action is economic behavior***

Thats a truism Jim. Still, here, I disagree with that statement in the context of IPRs and innovation because it becomes an ambiguous one; implying that capital and gifts are on the same level.

Re: Piet

Noel Le — Tue, 03 Oct 2006 23:03:09 -0000

***...to a programmer, a software is fundamentally a form of expression. It's an extremely precise description of a process for performing a particular task. ...This is what motivated geeks to mount the argument that the DMCA violates the First Amendment...***

Tim, there are everyday limits to the First Amendment. Certainly, you don't think you have the right to come into my living room to recite your favorite poems, hop into my car and write stuff on my dashboard do you or grab my computer and fiddle with it. And most certainly, you don't think I should be obligated to make it easier for you to do any of these things by keeping my doors open or my computer sitting on my front porch.

Re: Civil Disobedience in France

Noel Le — Tue, 10 Oct 2006 19:21:12 -0000

Steve I see yous point to some extent. Yet the contours of the DMCA are still going through the courts. The issue at question on TLF seems to be how much the rev-eng exemptions accommodate fair use and where in the DMCA "fair access" akin to traditional fair use can be defended. Those who structure their policy views with *bright lines* naturally argue for the most farfetched solutions like repealing the DMCA rather than going through our judicial process to iron all this out. Sound policy reasoning would be a bit more cautious.

Re: Kiko and Building versus Buying

Noel Le — Wed, 11 Oct 2006 22:24:52 -0000

Well, if you're describing low capital and risk intensive companies not incorporating IP into their strategy, THEN YES!!! We exchanged messages about this. Roughly speaking, as businesses move from services, to software to hardware based business models, they tend to value patents more. With copyrights, its a bit different, but you understand the general scale I'm drawing. The key is that the importance of IP occurs on a scale.

There are exceptions though. I was wrong about generalizing "ecommerce" companies as low capital and low risk. Look at Google, they roughly fit this description, but the economic value of their search algorithm, developed at Stanford, fits with Jim DeLong's theory.

Finally, I'm hesitant to generalize to much about YouTube. We never witnessed it on the business path after signing with content owners. It might have acquired enough revenue to invest in development, offered DRM, stayed IP free, who knows...

Re: Kiko and Building versus Buying

Noel Le — Wed, 11 Oct 2006 22:56:17 -0000

Oh, I should have emphasized that many R&D; intensive companies are planning to offer their products as services. This doesn't quite change the importance of IP to them, nor does it make them the kind of ecommerce companies with little valuable IP. The the economics of capital, risk, misappropriation, etc, for these companies does not change that much.

Re: Free Trade vs. Intellectual Property

Noel Le — Thu, 12 Oct 2006 14:25:17 -0000

How does IP affect trade barriers.

Also, the title of your post implies that free trade and IP are somehow opposed.

Re: Free Trade vs. Intellectual Property

Noel Le — Thu, 12 Oct 2006 15:05:26 -0000

FTAs and "free trade" are not quite the same thing. You still don't show how free trade and IP conflict though.

Look at the recent visit by China's president. There were 2 or 3 main issues on the table, one of them was IP.

Still, the title of your post was misleading, as was your post yesterday about backwards reasoning in copyrigt law, where you criticized a litigation strategy rather than anything dealing with copyright doctrine.

Re: Free Trade vs. Intellectual Property

Noel Le — Thu, 12 Oct 2006 18:27:04 -0000

You are a good man Charlie Brown, I mean, Tim Lee.

Re: Free Trade vs. Intellectual Property

Noel Le — Thu, 12 Oct 2006 20:22:09 -0000

PLN, the way you put it, there is inherent conflict between all forms of regulation and policy. Thats a truism. IP laws are often balanced with antitrust and contract laws.

Also, PLN, your brief discussion shows you balancing the implications and trade-offs between IP and trade, thus I don't think we're that far from each other.

My disagreement with the original post is that Tim seemed to imply that we have some zero-sum game of free trade (or FTAs, I'm not sure which he means) vs strong IP laws.

Re: Free Trade vs. Intellectual Property

Noel Le — Thu, 12 Oct 2006 22:55:18 -0000

PLN its interesting you mention the ideal of free trade and Levin/Boldrin, who advocate perfect free markets (by blindly applying Ken Arrows competition theory). Im somewhat of a realist though. Economic policies need to address economic realities, not yearn for Newtonian ideals that are only meant as guiding principles.

Re: Market Losers Litigate

Noel Le — Fri, 13 Oct 2006 02:18:31 -0000

Enigma, have you attended the Chopin competition. I just downloaded Horowitz's nocturnres. Horowtitz, my friend, like Chopin, is true genius.

Re: Market Losers Litigate

Noel Le — Fri, 13 Oct 2006 03:38:43 -0000

***I wonder if "intellectual property firm" is a euphemism for "patent troll."***

Tim, this is pretty inflammatory. As most folks in IP policy are trying to narrow down and pinpoint the definition of patent trolls, you seem to simply call all IP companies patent trolls.

To be honest, I disagree with you a lot, but a statement like this is beyond the pale... its like me calling you Richard Stallman.

Re: Free Trade vs. Intellectual Property

Noel Le — Fri, 13 Oct 2006 17:58:35 -0000

I like how this blog turned to a discussion about the goals of trade policy. It had to because the suggested relation between IP and free trade in the original post was such a stretched effort.

Re: Market Losers Litigate

Noel Le — Sun, 15 Oct 2006 13:23:12 -0000

Patent troll is a term used to describe a firm or entity that abuses the patent system. There is disagreement about the contours of its precise meaning, but this is the general sentiment.

Current efforts at patent reform intend, partially, to curb abuses of the patent system by patent trolls. But rather than separate firms that use patent in positive ways, Tim simply calls all firms holding patents patent trolls.

Whats funny is that Tim's comment is neither necessary nor even relevant to his blog. He just threw it in there.

Re: More on Fashion Copyrights

Noel Le — Sun, 15 Oct 2006 13:30:55 -0000

Clearly defined property boundaries have limited applicability in policy analysis. To rely on this argument too much ignores the characteristics of innovation in various industries and markets is another.

It is widely observed that technological innovations are covered by many patents. To say that this complexity for IP negotiations, licensing and litigation outweighs the beneifts of patents is Tim's argument. This might make sense with fashion copyrights, but with other fields, his approach does not work. It leads him to argue that mere claim construction (high-level functional descriptions) found in software patents is sufficient justification to eliminate patents for software altogether.

Re: Quote of the Day

Noel Le — Mon, 16 Oct 2006 20:15:18 -0000

OK, if its a fallacy, then strip your DRM-d CDs Tim:)

Re: Quote of the Day

Noel Le — Tue, 17 Oct 2006 03:13:43 -0000

Tim, ou give no reason why Yahoo! is right. What is the argument?

And again, if DRM is a fallacy, why don't you buy proteced music, and strip it of DRM? What is stopping this. You beg the question, now answer it.

Re: Quote of the Day

Noel Le — Tue, 17 Oct 2006 14:43:04 -0000

Yes, its technically easy to strip DRM, but its not done on a grand scale for a legal reason: the DMCA. Law Student has a great point that DRM and the DMCA have to be considered together.

My disagreement with Tim is that he argues DRM hurts interoperability and simply adds costs to consumers who legally purchased their music (I've reminded him that he's purchased a copy of music, along with use restrictons). But then he argues that the DMCA supports this with threat of legal liability aimed at curbing piracy. In other words, Tim does not like DRM, and likes the DMCA less because the DMCA is doing what its supposed to. Tim's solution is to get rid of DRM altogether, and either sidestep the DMCA or repeal it, but his business justifications are stretched b/c he does not incorporate the voluntary incentives of music labels (in fact, he wants to get ride of them too) into his planning.

Re: Five Stages of DRM Failure

Noel Le — Thu, 19 Oct 2006 13:28:55 -0000

Tim, would you characterize yourself as being STUCK BETWEEN THE DENIAL AND ANGER PHASES!

Earlier I characterized your views as follows. Let me know if you disagree.

***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.***

Addes to this is your implicit view that patent and copyright reform efforts are a waste of time. One of the tenets of your writing is that the industry and consumers are hurtig, whereas the American digital economy is the top in the world. Plus you always bring up MP3.com, as if the industry has failed to innovate without it.

Re: YouTube the Entrepreneur?

Noel Le — Thu, 19 Oct 2006 14:12:08 -0000

I posted comments below in response to Jim Harper on that blog.

To be honest Tim, I know some copyright counsels in the in the industry. I'd be happy to pass along your works if you think that you understand copyright business policy. You write enough about the industry aspect of copyright, it might be time to talk to someone who works in it.

***There are many who feel like any kind of compliance is a burden on innovation these days. My response is that legal barriers to entry occur in every industry, and that if a company cannot afford to license IP or get legal counsel, I would question its business plan, and somebody should tell whatever poor VC lent it money.

WRT to your comment ***Do either of you or both believe it is a good thing for Yougle (a new moniker!) to use copyright solely for its suppressive effect on competition?***

I believe Yougle is on the receiving end of copyright disputes, and the general sentiment is that Yougle is the one being suppressed. Perhaps you meant that the Studios are weilding copyright to suppress competition by Yougle.

In any case, your comment implies an endorsement for perfect competition, and when that does not happen, you cite a situation where competiton does not occur or is suppressed. In Yougle's case, simply having to license content from an IP owner is far away from posing any instance of stifled competition. That argument is a stretch.

If YouTUbe did not have the capital to get licenses, it probably planned on establishing a user market, delaying copyright disputes long enough that the Studios would see its bsuienss value grow, and eventually be bought out. This is exactly what transpired.

What gets me is those who argue for YouTube's handling of copyright as if the company had remained an independent entity, and was not bought out by Google. But YouTube was not a viable business, and any real innovation coming from it will be in the Yougle era, when the copyright issues are handled legitimately.***

Re: Five Stages of DRM Failure

Noel Le — Thu, 19 Oct 2006 15:56:11 -0000

Hmmm. I believe that the tech and content execs who criticize DRM are those left out of the lucrative business loops that have arisen around it. To some extent this is good because it will force them to adopt businesses without DRM. But this is far from saying that DRM is bad overall, just because some companies didn't hire visionary busiess development groups.

My point above is that at some point, as a policy commentator, you have to consider what exists in the current business, tech, legal landscape.

Re: Five Stages of DRM Failure

Noel Le — Thu, 19 Oct 2006 16:50:12 -0000

You've written extensively about business, tech and legal issues, but you want to change everything with a broad swoop. Are you working in a vacuum. Perhaps you should consider that your analysis is a bit odd-mark, that the business activiies you advocate are not tenable, and besides all these things you want to shut down or repeal, innovation will go on.

Re: AT&T-BellSouth Merger Nears Approval

Noel Le — Fri, 20 Oct 2006 13:50:24 -0000

Check out the chapter by Ted Cohen and Susan DeSanti in Expanding the Boundaries of Intellectual Property: Innovation Policy for the Knowledge Society, by Rochelle Cooper Dreyfuss, Diane Leenheer Zimmerman, Harry First (Ed). It talks about how antitrust enforcement and analysis should be proactive. It spells out the doom of free market enterprise if you ask me.

Re: Kulash on DRM

Noel Le — Tue, 24 Oct 2006 15:07:03 -0000

Sounds like the guy needs a new promoter.

Tim, we talked before about you wanting to eliminate software patents, repeal the DMCA, overturn content labels, etc etc. These perspectives don't reflect the kind of practicality needed in business and industry commentary.

Re: Kulash on DRM

Noel Le — Tue, 24 Oct 2006 16:22:37 -0000

Why does the OK Go artists think that others are unfortunate b/c they have DRM on their music. Is he just talking about struggling artists, or all artists.

One point about the artist's comments. He talks about wanting to build a following, and that this would be facillitated through (legal) file sharing. What happens after he builds that fanfare. He may choose DRM then when he no longer needs to distribute his music at the lowest cost possible and with the least restrictions in order to attract masses of new listeners.

I don't think DRM is a good in itself. Artists should be able to offer their songs free of DRM, perhaps even price them higher when doing so. But consider DRM as an option, like I do, and think about it benefits artists (not just consumers).

Re: Why Red Hat Isn’t Afraid of Oracle

Noel Le — Tue, 31 Oct 2006 14:43:38 -0000

Hmmm. I didn't know the "volunteer developers" were that hands on with customers. Are you saying Red Hat leverages open source developers not only for product development, but also support?

You may be right that Oracle doesn't understand everything about running an open source service biz off of Red Hat's or any body else's distro, but think about it. Does Oracle plan on offering a full line of support, or only for implementatoins which it has expertise for. In other words, Oracle doesn't have to be as knowledgeable as Red Hat to begin with.

Also, the real question is whether Oracle can track Red Hat's prod dev cycle to the extent that its services team only needs to worry about incremental changes to the code, or does Oracle plan on starting out selling services to Red Hat, adopt Red Hat's customer base and then deploy its own Linux flavor.

Re: Math You Can’t Use

Noel Le — Wed, 01 Nov 2006 18:01:36 -0000

I'm surprised the book is released through Brookings Press. Perhaps Brookings didn't check with its exmployees at the AEI-Brookings Center, who actually specialize in IP policy.

Re: Math You Can’t Use

Noel Le — Wed, 01 Nov 2006 21:50:58 -0000

That the book should not be taken to represent Brooking`s IPR positions.

Re: Math You Can’t Use

Noel Le — Thu, 02 Nov 2006 09:54:59 -0000

Oh, Charles, look up Professor Jacqueline Lipton, who recently did an article on why patents are more suitable for software than coprights. I don't remember the title of the article offhand...

Re: Math You Can’t Use

Noel Le — Thu, 02 Nov 2006 16:38:07 -0000

BK, your position is consistent with Brookings fellow Ken Dam's position on patents- that poor administration of patents can offset the economic justificatons for them. Dam had a special concern for software patents, although he agreed with the statutory subject matter holding of State Street.

We're probably not that far apart on patents. Unqualified support for them on the part of fanatics gives the rest of us who like quality patents a bad name.

Hmmm. So you don't like patents for pure algorithms. Do you distniquish between software and business patents at all then.

Re: Software Patent of the Week: Litigation is for Losers

Noel Le — Thu, 02 Nov 2006 19:55:08 -0000

***evidence that patents are harmful to the software industry***

Wouldn't going through economic or market research studies be more valuable in making this claim than analyzing 1 softare patent per week.

By the way, what evidence is there that patents hurt the software industry. How exactly is the industry worse off with patents.

Re: Software Patent of the Week: Litigation is for Losers

Noel Le — Fri, 03 Nov 2006 01:19:29 -0000

First of all, how much does the SCO suit rely on patent claims. Second, what point is there in IP if you can't assert your property rights.

I'm not a fan of litigous trolls, but as usual, Tim tries to make a point that his evidence really has little bearing to.

Re: Software Patent of the Week: Litigation is for Losers

Noel Le — Fri, 03 Nov 2006 12:35:32 -0000

Steve R, I think everyone knows our patent system needs fixing. But getting rid of software patents, rather than improving them, or arguing that patents have a net detrimental effect to the software industry, are not productive discourse unless you substantiate your claims. Right Tim:)

Steve, you're right that patents don't provide either an absolute or irrefutable property right (I think Prof. Carl Shapiro wrote about this, I'll look up the article later), and your claim that folks try to "create" property rights observes the difference between broadly claimed patents and technologies subject to their suit. Again, these are issues of claim construction, and if anything else, recognize that courts have an important role in interpreting what rights actually fall under a patent. Implicitly, you disagree with Tim's argument that the value of patents lies on the face of their claim construction.

Re: Microsoft and Novell: Understanding the IP Implications

Noel Le — Fri, 03 Nov 2006 12:38:41 -0000

Hmm, not to nit-pick, but innovation also entails the finished product, not just the process of commercialization. For reference in defining innovation look up this article by Profs Josh Lerner and Marco Iansiti- I think it was released by either Harvard Business Review or AEI-Brookings.

Re: David Friedman on the Gift Economy

Noel Le — Sun, 05 Nov 2006 21:14:48 -0000

Jim, I'm not arguing against a truism, I'm arguing against your mis-representation of it.

Re: Plagiarism vs. Copyright Infringement

Noel Le — Sun, 05 Nov 2006 21:19:25 -0000

So, is the Wikipedia critic the one who conflates plagiarism and copyright infringement, or is it the journalist who covered the story.

Re: Gettin’ Intellectual About Property

Noel Le — Sun, 05 Nov 2006 21:35:19 -0000

Its important to separate copyrights and patents when you're discussing utilitarian and natural rights views of IPRs. Patents have a purely utilitarian basis. Copyright is more of a mix of utilitarian and natural rights concerns.

Jim Harper, there is a difference between applying theories of real property to intellectual property, and taking examples of real property to explain intellectual property. I believe JDeLong was doing in the latter in the post you cite, but you seem to interpret him doing the former, and build your whole critique on that misreading.

Re: Karaoke and Compulsory Licenses

Noel Le — Mon, 06 Nov 2006 12:01:27 -0000

***The primary deadweight cost to using a property rule for song copyrights is not, as that study suggests, technological costs relating to finding and compensating rights holders. Rather, they are the deadweight costs from copyright holders setting inefficiently high prices in order to maximize revenue.***

Tim, are you opposing freedom of contract. Freedom of entering (or not entering) contract was Prof Merges' primary point in that Cato paper (which I thought was pretty good).

What it sounds like here is your disagreement with Prof Merges' argument against "forced sharing." Now lets be fair, Prof wrote the article before a lot of current controversies like XM Satellite and YouTube, which have made a lot of people reconsider compulsory licensing. I'm generally against it, but you're right, it can induce efficiency.

Still, w/r/t your post, did you mean to call the economic interests of the primary stakehodlers, copyright owners, deadweight costs. In that case, why not set up a karaoke business and only use songs from artists who give them away for free or agree to compulsory licenses.

Oh, please explain this: ***Copyright is a government-created monopoly***. What kind of monopoly Tim. A monopoly over what.

Re: Karaoke and Compulsory Licenses

Noel Le — Mon, 06 Nov 2006 14:29:20 -0000

This post still hits me as a bit odd. Now, why would we induce more theoretical efficiency into the karaoke industry. Is stagnation in that industry hurting our economy, depriving folks from entertainment, or perhaps diminishing our culture and freedom.

Efficiency is a funny thing, because sometimes less of it is more productive. If you don't agree, then fine. But to argue for inducing effiency, by characterizing royalty payments to copyright holders as dead-weight costs when there is no indication that greater economic activity would result(karaoke busiensses, venues that host karaoke, etc) is not only misleading, but eccentric, to say the least.

Re: Karaoke and Compulsory Licenses

Noel Le — Mon, 06 Nov 2006 14:50:21 -0000

***The economic problem solved by the compulsory licensing regime is the deadweight loss that occurs when a music publisher demands more than the artist is willing to pay, leading the song to never be recorded at all.***

Tim, yes this would be deadweight cost, but is it happening.

Also, negotiations break down all the time. Licensees don't want to pay a lot, licensors want to extract as much as they can. Based on your analysis, you presume its the fault of the copyright holder if a song is not licensed. Why is that Tim. I'm curious.

Re: Karaoke and Compulsory Licenses

Noel Le — Mon, 06 Nov 2006 15:48:59 -0000

***Do you have an alternative explanation for Glen's observation that karaoke machines tend not to use the original recordings? That seems to be anecdotal evidence that the market isn't working as well as it could.***

First, you dodge the issue of monopoly. Or are you saying that b/c there might be suboptimal production, we might as well cite the presence of a monopoly (which is usually your approach).

Second, how is the market not working optimally. How do you know that more songs will be produced? w/ your little theoretical model? The issue you should address is will copyright owners create songs in the first place, not whether artists will create more songs just b/c they will be played on kaoroke:):):):)

Also, Tim, tell me about 1 law or regulation that serves its purpose in your opinion. Seriously. Should we abolish the law of larceny b/c it still occurs. How about tresspassing. Should we abolish tresspass laws b/c they are easily circumvented.

Re: Karaoke and Compulsory Licenses

Noel Le — Mon, 06 Nov 2006 15:53:23 -0000

***Moreover, libertarians are usually highly skeptical of arguments that we should make policy based on our "respect" for particular professions. We certainly wouldn't support higher steel or textile tariffs because the workers in those industries deserve more respect. Nor are we swayed by arguments for raising public school teacher pay because they "deserve" more than they're currently paid. Although I have a lot of respect for songwriters (just as I do for teachers and textile workers) I don't think we should craft public policy based on a subjective evaluation of what they "deserve."***

Funny, Tim your copyright policy arguments are fundementally natural rights. I say that b/c of the stretched effort you make in your utilitarian arguments, often times ignoring market indicators while justifying your positons with, well, examples like karaoke:):):) Also, the "freedom to tinker" is essentially a natural rights arguments. Patrick understands both the utilitarian and natural rights aspects of copyright law, so its funny that in criticizing his approach you are refuting your own.

Re: Why Novell Needs the Linux Community

Noel Le — Wed, 22 Nov 2006 13:13:30 -0000

The Linux "community-" aren't these firms competitors. I don't see "ostracism" of Novell by the "community" as anything new. It seems like FOSS entities are just showing their inexperience in the software industry.

I don't see how Microsoft and Novell are "dueling" over anything. Ambiguity and contradition does happen in the industry. Sometimes you read too much into things.

Re: Why Novell Needs the Linux Community

Noel Le — Wed, 22 Nov 2006 13:15:55 -0000

Sorry, I meant to also address the "community" of developers. Whats going to stop Novell from just hiring developers. And don't you think that developers who find more sense and value in licenses like the BSD wouldn't really care about the GPL, which they often find alienating to the proprietary industry.

Finally, Tim, what do you see as the optimal collaboration between "IP firms" and FOSS entities.

Re: Social Sharecropping?

Noel Le — Wed, 20 Dec 2006 12:56:53 -0000

Carr and Felten, while respected in their own fields, obviously come about this from different viewpoints. Folks like Carr, of which I consider myself, see value in terms of *commercial value.*

I wouldn't call Carr's position as one reflecting discomfort b/c no cash exchanges hands. That might not even be the proper description of MySpace, as it leverages users as inputs, and excahnges cash with advertisers at the other end of the value chain. I would also see FOSS in this way; although may volunteer on projects, firms still turn around and charge users for services- again thats simply shifting the commercial exchange to a different part of the value chain.

Tim, if markets don't require money, then why don't FOSS firms give away their services for free?

Re: Sohn on Fair Use in the Journal

Noel Le — Wed, 20 Dec 2006 13:01:11 -0000

Fair use is decided by the courts, although reading TLF you'd think that bloggers decide fair use, as well as obvious patents, DMCA anticircumvention, and a lot of other things. Interestingly, fair use, patents and the DMCA are all constructs that Congress seems to have given the courts more discretion in interpretation than other aspects of regulatory policy.

Doug, Patrick does not take a *moral* position on copyright, but more of a natural rights view. Nothing wrong with this, as Tim Lee takes a natural rights position on copyrights (but does not admit it). And where did Patrick say Google was not engaging in fair use?

Re: Social Sharecropping?

Noel Le — Wed, 20 Dec 2006 15:23:09 -0000

Hi Professor Felten,

I'm aware of the economic definition of value, which is why I differentiated your comments on MySpace sharecropping with those by Nick Carr. I don't believe the two of you differ that much about MySpace if the definition of *value* is qualified and given context in your comments. Note that in the passage you cite from Carr, he writes:

It's a sharecropping system, but the sharecroppers are generally happy because their interest lies in self-expression or socializing, not in making money...

It seems that any disagreement between you and Nick Carr arises because you're talking about two different kinds of value.

Re: Social Sharecropping?

Noel Le — Wed, 20 Dec 2006 15:27:22 -0000

Sorry about the flimsy comment, I'm trying to finish a lot of stuff so I can actually vacation over Christmas break.

Anyhow, Tim, your comment about "markets not requiring capital" might be qualified to say "some aspects of market activity do not directly require capital." Do you disagree?

Re: Sohn on Fair Use in the Journal

Noel Le — Wed, 20 Dec 2006 15:50:55 -0000

Tim, if you understood what you write, then you might find that you take a natural rights approach to IP. Note that often when we disagree, you never explain your argument more fully, but rather, you say that you were just exaggerating. If you were guided by utilitarian, or even economic considerations to begin with, this would occur less often. You compensate for your natural rights/quasi-moral views somewhat by trying to communicate that you're guided by logic (note how often you say things like "logical fallacy" or "misguided reasoning" or "clear thinking") but your arguments hardly display such qualities. You don't care about innovation, the industry, consumers, economic growth or anything; all you have is some extremist left-wing Libertarien ideal for which you'd take apart all that that IP has done for society. Look at your arguments on the DMCA; I've pointed out to you how the case law does not support your Cato paper, yet you won't even address my points because that would cause you to read and understand case law rather intrepret how they affect some extremist Libertarien views. Look at software patents; you want to eliminate them just so hackers have more freedom to tinker- eliminating a class of patents is very extreme, but you won't even consider reform measures.

Doug, Patrick is saying that although he differs with others on whether GOogle's actions constitute fair use, the courts will have the final say. Patrick is not arguing that Google Book Search falls outside fair use, he's saying he has a hard time seeing how it might. (here, Patrick and I differ, I think Google may prevail)

Re: Sohn on Fair Use in the Journal

Noel Le — Wed, 20 Dec 2006 16:24:50 -0000

TIm, I'm not saying you've explicity discussed the philsophical underpinnings of IP, but your views do imply that you hold a solid philosophical perspective on IP.

There is nothing wrong with taking a natural rights view of IP. But, its important distinquish between the two, and to proceed with your arguments coherently. Personally, I take a natural rights view of copyright, but when I argue about the DMCA or fair use, I'm talking in terms of utilitarienism.

Tim, every DMCA anti-circumvention case you bring to my attention does not support your views (Real Networks, Blizzard, etc). I've looked over the case law as well, and personally I think they could have been written more clearly, but they primarily address reverse engineering that results in infringing products while your Cato paper interprets them as deciding on the act of reverse engineering. Note how courts apply the law, not just their final decision; and keep in mind that reverse engineering happens every day in the industry.

I don't think we differ that much on the importance of reverse engineering and interoperability, only to the extent that they should be protected. Even if you looked over DMCA section 1201f case law again, you still might argue that the DMCA stifles innovation because you always argue that more of a good thing (reverse engineering, interop) is the universal solution, while I like a moderate balance.

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

Noel Le — Thu, 21 Dec 2006 19:41:30 -0000

Doug, that DMCA entry on Wikipedia actually isn't terrible. Thing is, the passage they cite from Tim, where he argues that DRM is not successful at stopping piracy, is misplaced.

Whoever the Wikipedia author is, he does not seem to understand that DRM is a first line technical barrier to deterring piracy, with the DMCA its legal backup. As a policy argument, it does no good to cite the failure of DRM to stop all piracy; all that does is reiterate justifications unpinning the DMCA.

Re: Competition is a Feature, not a Bug

Noel Le — Sat, 13 Jan 2007 14:23:11 -0000

Yup, Richard, states it well.

I'm waiting for Tim Lee to come back and say that absent patent protection, the kind of R&D; undertaken by Xerox can be picked up by "social production" entailing tinkering in the garage basement.

Re: The Multi-Function iPhone

Noel Le — Sat, 20 Jan 2007 17:23:34 -0000

Jim Harper, have you taken to fueling the competitive fires between Apple and Microsoft?

Alright!!! Lets keep these firms on their feet!!

Re: Software Patent of the Week: Wireless + Dining Philosophers = Non-Obvious?

Noel Le — Sat, 20 Jan 2007 17:26:10 -0000

Back to the basics Tim. I believe my questions above are fundemental to your patent of the week series. I wish you would simply address them.

Re: The Technology Liberation Front » Archive » Music Industry Booming

Noel Le — Fri, 26 Jan 2007 16:53:46 -0000

The level at which piracy has decreased music industry revenues is greater than the overall revenue decline in the music industry. Your downplay of piracy as inevitable doesn't address the numbers.

You conflate different indusries; implying that the death of the music profession is offset by sales in instruments and music lessons, and thus the *music industry* survives.

***millions of people still spend billions of dollars training to become better musicians. It's awfully hard to see how strong copyright protection could explain this.***

Ummm. Copyright allows musicians to recoup their investments and risks. Copyright law however does not explain all activities surrounding the making of music. Here, as you often do, you try to pin down a direct 1-1 causal effect (between copyright policy and music production). Such an all or nothing approach isn't very productive in serious policy discourse.

***most people make music because they enjoy making music.***

Well, this comments actually refutes your whole argument. If current musicians made music simply because they enjoy it, without profit motive, then why would labels and independent artists be leveraging copyright policy.; the very activities you're criticizing them for.

Re: The Technology Liberation Front » Archive » Music Industry Booming

Noel Le — Sun, 28 Jan 2007 01:44:56 -0000

Eric, I'm not saying that decline in music revenue is based solely on piracy; rather, the level at which piracy has reduced revenue is greater than the overall decline. I won't hypothesize what the music industry would look like without piracy, since I know that some positive externalities occur with piracy.

Several implications can be drawn by music piracy studies I've looked at:

1)whatever positive externalities music firms enjoy with piracy (greater exposure to songs, larger distribution that may have faciilitated sales, ec) are offset by its effects on the bottom line.
2)with less piracy, music sales would have decreased to a lesser extent.
3)piracy explains a large part of decline in music industry revenue.

Eric, you say that many musicians you're aware of do not leverage copyright in some, well, controversial, ways. I take issue to that. These musicians have made the decision to waive some of their rights under copyright policy. But independent, as well as "labeled" musicians leverage copyright policy in some form; and I will argue that musicians should always have that option.

Independent and "unsigned" musicians benefit from not leveraging all forms of copyright policy, in order to gain exposure and to push their music to the widest audience. But what happens when they get big though, when offering "tasting" of their work no longer figures that much into their motive.

Eric, I agree with you that there have been cases where musicians did not feel like they were treated well by their labels, but the fact that a few major labels represent the majority of "popular" musicians (if they were not popular, then consumers would not have a problem with simply buying other artists rather than complaining about the major studios) tells me that many artists find their intersts represented by entities that value current copyright policy.

Your final statement about MNC's sounds really innovent (please don't tell me you went to Oxford or Berkeley:) MNC's are made up of people, like you and I. I don't see any point in vilifying them per se.

On a final note, yes, I play the piano. My composers of choice: Chopin and Rachmaninoff. My favorite selection is the Rubinstein collection of Chopin. On a philosophical point about creativity, I follow more of the tradition of Goethe and Nietzsche where creativity is regarded as the result of demonic impulse rather than the rigid/logical motivations as espoused by Rand.

Re: The Technology Liberation Front » Archive » Music Industry Booming

Noel Le — Sun, 28 Jan 2007 17:51:48 -0000

Tim,

I was stating that up-coming artists may not leverage copyright policy to its full exent b/c they need to get exposre by pushing their work to the widest audience. I think you read my statement to the extreme. I didn't say they they don't leverage copyright policy at all, nor did I state that established musicians do not strategically waive leveraging of copyright policy.

I agree that copyright policy should not be a welafare system, but unless we're talking about the CTEA or other extension acts, the welfare analogy does not really apply.

Steve R, I read the same report. Its good work, but there's a lot of academic research disagreeing with it.

Doug makes a lot of sense in his post.

Re: The Technology Liberation Front » Archive » Music Industry Booming

Noel Le — Sun, 28 Jan 2007 18:56:59 -0000

Eric, the studies I looked at calculated sales displacement caused by illegal file trading while considering positive externalities associated with that illegal activity (i.e. how many pirated copies would not have been sales and thus should be considered deadweight costs in terms of transactions that never would have hapened)

Again, keep in mind the studies I looked at mereley gave *projections* with some variation in exactly how much piracy affects music revenue. However, apart from the study Steve R cites above, I did find that the negative impact of piracy outweighs its benefits to the music industry- in contrast to public statements I've seen from Gary Shapiro and others.

Re: Music Industry Booming, Part 2

Noel Le — Tue, 30 Jan 2007 00:16:04 -0000

What?!

Re: Music Industry Booming, Part 2

Noel Le — Tue, 30 Jan 2007 00:24:49 -0000

1) shouldn't musicians be encouraged to tap the Internet as a revenue stream:)
2) I believe artists who try to push their music to the widest audience by giving them away for free are interested in the "long term" benefits; but nobody really thinks that artists should be forced to waive their privileges under copyrights like you do:)
3) its fine to break down the economics of music copyright into digital and real world, but it doesn't help when doing so distorts your view of the industry. Pricing a song at zero sounds like a witty twist in logic but does not consider the production costs.
4) when musicians waive some copyright privileges, its not called piracy, thus your claim about zero-piracy inducing artists giving away songs is a scenario of reasoning tripping over linquistics.
5) you still don't address my point in your previous post about the *thriving music industry.* I raised an issue that the costs of piracy outweighs its benefits.

Re: Music Industry Booming, Part 2

Noel Le — Tue, 30 Jan 2007 07:50:22 -0000

Well, unless digital copyright policies are respected and enforced, thats what happens Tim. If I misrepresented your views, then please clarify.

Its funny, you claim to support musicians by saying how they labels do not always have their interest in mind, but the person who has an interest *against* these artists is you Tim.

Re: Using MP3s Responsibly

Noel Le — Tue, 30 Jan 2007 08:05:46 -0000

Tim, in almost all of your writings where you claim that "DRM is not successful at stopping piracy" (which I think is pretty a strawman, a more meaningful statement would be that "DRM does not adequately deter piracy"), one can easily replace "DRM" with the "DMCA" to arrive at the statement: "the DMCA does not adequately deter piracy." But thats a bit funny. What makes you think relying simply on traditional copyright law rather than the DMCA will work better.

PS- any responsible reply will show at least some concern for piracy.

Re: Piracy Kills Eastside Hockey Manager?

Noel Le — Wed, 31 Jan 2007 23:52:53 -0000

***In some industries, such as music, I'm sympathetic to the argument that we'd get along just fine without copyright.***

You say a bit more than that Tim:) You've basically argued this week and last that musicians should not be able to tap the Internet as a direct source of revenue.

***But as I've said before, I think there are other categories of content that would be significantly impoverished without copyright protections.***

So some industries need copyright more than others. What does that mean in terms of policy? Should we have different copyright policies for digital code based on whether its helps consumers enjoy a book, game, movie or a song? Do your proposals to repeal the DMCA and ban DRM have any implications for industries that you feel deserve copyright?

Re: Piracy Kills Eastside Hockey Manager?

Noel Le — Thu, 01 Feb 2007 11:00:23 -0000

Tim, why do you predict that musicians will follow their own interest with your "virtuous" model of business, when you criticize them for following their self interest now: trying to maximize their profits (as if thats a bad thing) and leveraging DRM. Oh, you only want musicians to follow their interest when it suits your interest:)

I have not distorted your views Tim. Rather, if you don't clarify them, then they may be misinterpreted. So its better to address my questions.

Re: Piracy Kills Eastside Hockey Manager?

Noel Le — Thu, 01 Feb 2007 13:40:10 -0000

You criticize DRM because it does not benefit artists?! What...

I'm not going to search through TLF for citations, although its pretty hysterically obvious your frequent barbs at profit making entities that don't reflect your style of libertarianism.

In any case, you criticize DRM because it does not benefit you, Tim. You're hardly concerned with artists, because you want them to sell music lessons rather than songs over the Internet to make money. It seems like you want to tinker with Internet technologies at the cost of a large industrial segment, but don't want others to benefit the same way from technological progress.

Re: Piracy Kills Eastside Hockey Manager?

Noel Le — Thu, 01 Feb 2007 14:09:15 -0000

Tim, you've suggested that IP firms should be called patent trolls, advocated the downfall of the Hollywood studios, call corporations hierarchical beauracracies (whatever that means). You even predicted the demise of the softare industry as it is, with all software being created through peer-production- and your policy recommendations aim to support this delusion. I can go on.

You never address my questions when I pose them, and I'm not going to search TLF for those posts. Rather, it would be great for you to clarify your views here. I mean, look above, I asked you how you can shape policy that takes away copyright privileges for musicians but not makers of ebooks, movies and games; and you didn't reply.

Re: Piracy Kills Eastside Hockey Manager?

Noel Le — Thu, 01 Feb 2007 14:58:20 -0000

Tim, you want to take away musicians' current online revenue stream, and your proposals for alternatives are just plain weird.

First, you try to argue that the sales of musical instruments and music lessons shows the "music industry" doing well (by doing this you switched away from the core copyright music industry).

Second, you say that people make music for fun, and thus copyright is not necessary for the music industry (here, you fall into the fallacy of direct and causal 1-1 relationships between policy and real world phenomena).

Third, you follow some logic that generalizes every possible avenue of revenue, not taking into consideration either proportion or musicians' interest (so ToGo or whatever they are called give songs away for free, every musician does to some extent, but you want to build an entire industry on this).

Tell me if you were being serious, if not, I'll stop the criticism. And why are you attacking DRM and the DMCA to begin with? To protect your freedom to tinker? Because there is some regulatory effect on tinkering, even though there is no proven effect that DRM and the DMCA result in any substantial curb innovation.

My prior statements were correct.

And look, you STILL don't address my question about how repealing the DMCA will affect not only musicians but other copyright onwers in the online environment.

Re: Video Games and Movies without Copyright?

Noel Le — Fri, 02 Feb 2007 04:09:39 -0000

Tim, how would you compare the necessity for copyright (not copyleft:) in video games to software applications and other computer related technologies? Surely, the costs for both are great; but for software and computer technologies you often propose peer-production, criticize the leveraging of DRM, mock the cost w/ which proprietary companies develop their products. If these are not your views, then please clarify. Still, I'm wondering why you look at games and software/computer technologies differently.

Also, Tim, would you treat music, games and software differently in terms of copyright policy?

Re: Piracy Kills Eastside Hockey Manager?

Noel Le — Fri, 02 Feb 2007 04:13:46 -0000

Review previous posts on TLF and count the number of times Tim utters the phrase "hierarchical beauracracies," uses multiple meanings of "monopoly" in the same sentence, refuses to reply substantively to questions about his posts and criticizes someone's article or paper by calling it something, well, uncalled for. It seems like Tim may be the PR guy in Doug's article:)

Re: Video Games and Movies without Copyright?

Noel Le — Fri, 02 Feb 2007 10:56:45 -0000

OK, thats good that you're not proposing content/tech specific copyright policy. There has been discussion on that issue for patents, so I was seeing if you're going down the same road.

I'm fine with reducing the term of copyrights, and patents for that matter. Fair use is something I think the DMCA should more clearly address.

Re: Video Games and Movies without Copyright?

Noel Le — Fri, 02 Feb 2007 11:00:21 -0000

Oh, and Tim, the DMCA is not going to be repealed any time soon, at least based on your grounds of criticisms. And I've only seen you criticize Section 1201. Why not amend Section 1201? It seems sometimes that you only propose the most far-reaching solutions.

Re: Jobs on “Open DRM”

Noel Le — Tue, 06 Feb 2007 16:39:13 -0000

Interesting that Jobs uses an example from MSFT to explain why licensing DRM doesn't work.

I wonder if Apple and Microsoft are on good terms. I was reading this book on the history of the software industry, which explained that in the early days Bill Gates had a "red phone" in his office in Redmond that was dedicated to Steve Jobs. Whenever Jobs called and wanted to talk to Gates, Gates would fly to California.

Interestingly, Gates wrote a letter to the author of the book. Gates stated something along the lines of: "I think I'm treated unfairly on pages XX and YY, you say that Jeff Raikes has all-American good looks, does that mean he doesn't look like me."

Re: Jobs on “Open DRM”

Noel Le — Tue, 06 Feb 2007 19:42:18 -0000

Tim, Richard has a point.

I don't see how encryption does not constitute a kind of DRM.

Re: Software Patent of the Week: Speech Recognition

Noel Le — Tue, 06 Feb 2007 22:41:16 -0000

Tim, you raise the issue of claim construction in this Patent of the Week post.

There is one recent patent case where the court limited the scope of the patent to the technical merits as reflected in the disclosure (for the life of me, I can't recall it offhand).

It would probably be a good idea to see how patents generally are limited in scope by factors inside and outside their claim construction.

Re: “Freely Trading”

Noel Le — Wed, 07 Feb 2007 12:28:57 -0000

I wonder, what kind of leverage does Apple have with iTunes if DRM is completely abandoned by the music labels.

Re: “Freely Trading”

Noel Le — Wed, 07 Feb 2007 19:30:52 -0000

Doug, if the music labels totally jettison DRM, then I"ll run for Congress on an "outlaw DRM and repeal the DMCA platform." I'll license your blog posts and use them as my campaign slogans.

Re: “Freely Trading”

Noel Le — Thu, 08 Feb 2007 12:34:20 -0000

Well Richard, apparently, there's a branch of libertarians who believe that the mere existence of something like DRM, thats not consistent with their ideology, is a restriction to freedom.

Re: “Freely Trading”

Noel Le — Thu, 08 Feb 2007 13:58:07 -0000

Well Tim, then make sure you say that in posts where you blast DRM without even mentioning the DMCA. There was one post where you said (rough recollection): "DRM as central planning," thereby casting DRM as something inherently evil.

Even without the DMCA though, DRM can be successful in accomplishing the goal of furthering business models and maintained despite success hacks. Remember, DRM need not deter all piracy, it only has to deter piracy to the extent that a strong business model is viable.

Re: “Freely Trading”

Noel Le — Thu, 08 Feb 2007 13:59:18 -0000

Re: “Freely Trading”

Noel Le — Thu, 08 Feb 2007 14:43:39 -0000

Tim, if your point about DRM and central planning was clear, even in your own mind, you would have been able to explain it in about 1/5 the number of words you use above.

I'm curious, do you perceive their being costs of decentralization? Does moving towards decentralization always induce more efficiency?

I'm actually a supporter of decentralization. The decentralization of the tech industry that has facillitated viability for small and specialized firms, is the main motif of Prof. Chesbrough, who I often cite. Further, intellectual property rights provide for a more decentralized system of incentives than is possible under any subsidy or prize scheme. However, I don't generalize, especially politically, as much as you do Tim, on centralization v decentralization.

Re: “Freely Trading”

Noel Le — Thu, 08 Feb 2007 15:39:28 -0000

Thanks for the clarification Tim.

By the way, I wasn't even referring to you above! But as you addressed my point anyways, I figured carrying on the conversation would be interesting.

As far as DRM is concerned, I don' think its being deployed optimally. The problem isn't DRM itself.

Re: The Economist Joins the Bandwagon

Noel Le — Sun, 11 Feb 2007 14:52:24 -0000

Tim, the Economist has fallen all over the spectrum on IP policy issues. I don't recall them talking in depth about DRM previously though.

Regarding Jobs, if you pay more attention to what he says and not what he does, well, Tim, the entire Apple PR department should get a promotion.

I didn't hear about the artist wanting to go without DRM on iTunes until recently. Its BS that Apple didn't let him.

Re: DMCA Mysteries

Noel Le — Mon, 12 Feb 2007 11:54:16 -0000

With the current buzz over Steve Jobs' public comments on DRM, it may be important to talk about how DRM has not had the detrimental impact on innovation as some DMCA critics posit. A good starting point is Cato's 2006 DMCA paper: Circumventing Competition: The Perverse Consequences of the DMCA.

The paper misreads the case law, and consequently, seems long-winded since judicial analysis would tie much of its discussion on reverse engineering and interoperability to its primary policy argument for repeal of the DMCA. It should be read as an op-ed and not inform policy considerations, since possible developments in the DRM-music industry indicate market forces can more efficiently solve any problems associated with DRM.

The author seems to conflate a DMCA's prima facie construction and judicial interpretation. He argues that the wording of DMCA Section 1201(f) provides unclear guidance for legal reverse engineering, effectively chilling innovation by not demarcating sufficient lines of exemption; yet he seems to stop there, and gives little meaningful discussion on what courts have said about the section.

The writer does not fully consider instances where courts have limited the reach of the DMCA, and thereby provided precedent for curbing Section 1201. In one case, the court limited reach of Section 1201 by the type of work protected with access controls. Lexmark International v. Static Control Components. In another, courts curbed the DMCA by focusing on the purpose of crossing access controls. Chamberlain v. Skylink. Rather than discussing the significance of these cases in a meaningful way, the author's reasoning presupposes that Section 1201(f) would only make sense if the reverse engineering exception subsumed the rest of the DMCA.

The writer avoids refuting his policy recommendation that traditional copyright law will suffice in the digital environment by omitting altogether the decision in "Blizzard v. Bnetd," which held that the 1201(f) exception does not protect against otherwise infringing works under the Copyright Act. Per Professor Ginsburg: "the (1201f) exception would not make very much sense if it did not take into account whether the program that results from accessing and studying the plaintiff's code is infringing." Perhaps the writer wants to repeal all aspects of copyright law.

The author's case law analysis can seem entirely irrelevant. In RealNetworks v. Streambox, Streambox's device achieved the "secret handshake," giving access to content on RealNetwork's servers, but ignored the "copy switch," thereby enabling unauthorized copying of that content. Notwithstanding the holding, the writer claims that because the court decided against Streambox for allowing unauthorized uses of RealNetwork's content, that "it is not clear whether any unauthorized player of Real video streams could pass muster under the DMCA." Well, not allowing unauthorized use would be a start! Further, the author does not understand that in the holding, "unauthorized" applies to use of content, not the interoperable device; even correcting this mistake would not lend more clarity to his analysis however.

Finally, in his analysis of the RealNetworks decision, the writer makes news out of a part of the case the court did not even find determinative. The court in RealNetworks did not rule Streambox' act of reverse engineering illegal. Yet, the author writes: "The mere act of faking the secret handshake might be an illegal circumvention." Hmmm, somebody tell the court they went easy on Streambox and should have declared its act of reverse engineering illegal, not just the result of the reverse engineering.

To summarize, the author's view of DMCA cases is encapsulated in: "The precedents thus far give little hint as to which kinds of circumvention would qualify for the reverse-engineering exemption and which would not." A suggested edit: the precedents thus far do not make sense if you fail to focus, in depth, on the substance of holdings (Lexmark, Skylink), omit significant cases (Blizzard) and misread crucial rulings (RealNetworks).

Re: DMCA Mysteries

Noel Le — Mon, 12 Feb 2007 12:47:33 -0000

The threat of a lawsuit is often as effective as actually filing the lawsuit, and so the fact that there hasn't been much litigation on this front does not prove there hasn't been a chilling effect.

Tim, I did not mention this, but one reason may be that folks read papers like your paper, that are aimed primarily at scaring away potential reverse engineering work.

Re: DMCA Mysteries

Noel Le — Mon, 12 Feb 2007 13:33:47 -0000

Tim,

The importance of Chamberlain and Lexmark is that they limited applicability of Section 1201. That in itself is important because it excludes a class of cases that could potentially be brought under the DMCA.

Your discussion of Blizzard is a bit off I'm afraid. You claim its shows the DMCA as too broad; when in fact I believe courts *limited* reach of the DMCA. The fact that you did not talk about this case in the paper is still odd.

In Streambox, you hopped too fast to your conclusion rather than staying with your analysis. If one were to read your write-up without having read the case first, one would get an impression of the case that does not align with what and how the court ruled.

Do you see this trend of case law? Taken together they lend clarity to Section 1201. However, in your paper you seem disproportionately focused on the fact that the reverse engineering exception does not subsume the entire DMCA; your analysis seems to evaluate cases on how much they support your valuation of the DMCA.

I would recommend updating your case law analysis in the Cato paper.

Re: DMCA Mysteries

Noel Le — Mon, 12 Feb 2007 14:39:34 -0000

Tim, another case you could possibly integrate into a new version of the Cato paper: Storage Technology Corp. v. Custom Hardware Engineering & Consulting, Inc., 421 F.3d 1307 (Fed. Cir. 2005)- limiting the kind of reverse engineering covered by 1201.

Re: “Expertise” Is Not Always a Good Thing

Noel Le — Thu, 15 Feb 2007 17:47:11 -0000

Masnick, if more patent lawyers find themselves out of work, they might switch career paths and become politicians. In such a scenario, would society be better off? Yes Masnick, I'm afraid your argument only creates more questions than answers...:)

Re: You Can’t Compete With Tim Lee

Noel Le — Thu, 15 Feb 2007 17:56:57 -0000

Mr. Masnick raises some interesting points, but even with his examples, the argument still seems a bit too abstract.

Mr. Masnick, what policy reforms would your idea entail? Does your argument apply to copyrights and patents? Also, do you address different industries that leverage the Internet for distribution of digital goods/services (i.e. movies, ebooks, music, software)?

I understand, Mr. Masnick, that you're approaching IPRs from the foundational/ theoretical perspective -attacking the problem of public goods justification for IPRs- that is interesting, but your argument will be more clear if you spell out the policy implications.

Re: You Can’t Compete With Tim Lee

Noel Le — Fri, 16 Feb 2007 00:30:11 -0000

Masnick, it does sound like you are making a policy argument, if it turns out you are only talking about information goods.

Re: Moving Up the Ladder

Noel Le — Mon, 19 Feb 2007 15:02:47 -0000

Haha. The phrase, "the Lou Dobbses of the world," is hysterical. Actually its scary... Tim, you get my vote for quote of the day!

If you're interested in intrtnsyionsl labour and productivity flows, look up this study commissioned by the ACM. I can't find it offhand, but it was authored in part by Carnegie Mellon industrial-economist Ashish Arora. I think you'll agree with a lot of it.

Re: The Pizzaright Fallacy in Patent Law

Noel Le — Mon, 19 Feb 2007 21:11:34 -0000

Tim, I like how you linked to Professor Kieff's article, which sits on an IPcentral server. Check the URL on your link above.

I don't see how setting up the analogy by Ed Felten is particularly relevant. But if you're into analogies all of a sudden, compare source code to food ingredients, then walk into a fancy bisto and demand the list of ingredients/recipes for their top dishes. And tell them how knowing the ingredients and recipes will help you improve on their product, manifest your freedom to tinker and argue how peer production will replace all 4 star bistors in the future.

In any case, since you *often* put up TLF posts on articles *after* reading my reviews on IPcentral, here is the one for Professor Kieff's article:

*******
PFF Academic Advisory Council member, F. Scott Kieff, a Research Fellow at the Hoover Institution and law professor at Washington Univ, has released a comment on the proper direction for patent reform.

Kieff argues that patent system reform can increase competition and innovation by facilitating strong, enforceable, patents. For the patent system to enable the creation and diffusion of new technologies, patent validity-infringement-injunction rules must provide patent owners, especially small-independent inventors, the credible option of enforcing exclusivity. In making his proposal, Kieff addresses current reform discourse that would weaken patents, and consequently exacerbate rather than solve anti-competitive effects and blocking of downstream access to inventions.

When patents are not enforced by a strong right to exclude, the patentee's incentives to enter into deals are disrupted. Court-awarded damages in general often are seen to under-compensate for harms compared to the price a property owner would receive for selling permission to infringe, which is typically why the infringer decides to infringe in the first place.

A central aspect of Kieff's argument is that the main function of the patent system is not merely to induce invention, but to facilitate the risk taking and transactions necessary for commercializing them. The commercialization theory of patents aims to diffuse inventions broadly and rapidly into society. It recommends a patent landscape where patents are "enforced with clear and robust rules, providing a strong right to exclude," and can "serve an essential coordinating role in facilitating the complex process of getting inventions commercialized."

Commercializing inventions requires the participation of many parties, such as makers of complementary technologies, financers, manufacturers and distributors. Strong patents facilitate interaction among these parties, first, by allowing a centralized point around which coordination and negotiation can occur, and second, by a bargain effect, which gives incentive for actors to strike deals and enables some predictability for investment backed ventures.

Patent system reform entailing the proliferation of weak patents, in contrast, would decrease competition, close-off access to inventions and encourage patenting for reasons such as defensive stock-piling.

One of the justifications behind proposals to weaken patents is the belief that strong patents may create an "anti-commons," which raises transaction costs for innovators who need to clear rights in order to commercialize their inventions. Kieff argues that weak patents would simply extend the problem they seek to resolve.

...a US patent owner does not have...incentive to avoid open transactions. Transactions over patents... are important in monetising the value of the patent... patentees have a strong incentive to encourage use.

Refusing to enforce patents when there is a breakdown in negotiations would suffer a fundamental circularity that would create perverse, harmful incentives. If the ability to avoid the injunction hinged upon the failure of a deal getting done, then there would be a markedly increased incentive for those wanting to obtain use through court-ordered terms to resist striking licensing deals. A legal test that rewards a failure to cooperate would lead to a decrease in cooperation, not an increase.

Kieff predicts that reform proposals for weak patents would result in a "keiretsu" patent landscape. Keiretsu refers to large conglomerates in Japan, where the patent system is full of weak patents. Keiretsu leverage a system of weak patents to maneuver through transaction costs and litigation that smaller competitors cannot withstand, without fear of debilitating losses. What enables the keiretsu model is that "only weak patents be available, because strong patents could end up as the slingshots able to take down the Goliaths." Lets avoid such a future where weak patents harm competition, innovation, and fail to facilitate commercialization essential to innovation.

Re: The Pizzaright Fallacy in Patent Law

Noel Le — Mon, 19 Feb 2007 21:16:07 -0000

When patents are not enforced by a strong right to exclude, the patentee's incentives to enter into deals are disrupted. Court-awarded damages in general often are seen to under-compensate for harms compared to the price a property owner would receive for selling permission to infringe, which is typically why the infringer decides to infringe in the first place.

...a US patent owner does not have...incentive to avoid open transactions. Transactions over patents... are important in monetising the value of the patent... patentees have a strong incentive to encourage use.

Refusing to enforce patents when there is a breakdown in negotiations would suffer a fundamental circularity that would create perverse, harmful incentives. If the ability to avoid the injunction hinged upon the failure of a deal getting done, then there would be a markedly increased incentive for those wanting to obtain use through court-ordered terms to resist striking licensing deals. A legal test that rewards a failure to cooperate would lead to a decrease in cooperation, not an increase.

Re: XM + Sirius = Good Deal (for the Companies and Consumers)

Noel Le — Mon, 19 Feb 2007 21:32:58 -0000

I was hoping Microsoft would be more of a direct competitor to XM and Sirius by enabling wireless song downloads via satellite onto Zune.

Does anybody know if songs from XM/Sirius can play on popular music devices like Zune and the iPod.

Re: The Pizzaright Fallacy in Patent Law

Noel Le — Mon, 19 Feb 2007 21:51:59 -0000

Tim, this is one of the most biizzaarree posts you ever done. I might send it to Professor Kieff.

Did you catch my note about the source code-food ingredient analogy?

Re: The Pizzaright Fallacy in Patent Law

Noel Le — Mon, 19 Feb 2007 23:06:06 -0000

Tim may take a while to approve my first comment, given his busy schedule, so I'll repost. I feel its proper since Tim linked to the copy of Professor Kieff's article sitting on IPcentral's server, which I set up to write my review, and he did not even mention my review, which is a bit more considered than his write-up.

In any case, if we're going to make oddball analogies such as this one taken from some writings by Professor Felten, consider source code as food ingredients and recipes. Imagine that the typical FOSS supporter walked into a restaurant and demanded to know the ingredients and recipes for items on the menu. When asked why, he replies that it is essential to freedom an anti-monopolistic sentiment that he be privy to the secret recipes of the restaurant. When asked what he would do with the list of ingredients and the recipes, he replies that he'll improve upon what the restaurant has created, and that one day, four star restaurants would be moot because peer-production will top all dining establishments. When told that the restaurant needs to make money, and thus cannot give away its ingredients and recipes, our FOSS hero replies that the restaurant can always make money leasing out seats and tables, and that waitors can perform acts or play musical instruments to receive tips.

There is a certain limit to analogies, that's patently obvious. Its hardly something to critique a law review on patent theory by.

PFF Academic Advisory Council member, F. Scott Kieff, a Research Fellow at the Hoover Institution and law professor at Washington Univ, has released a comment on the proper direction for patent reform.

Kieff argues that patent system reform can increase competition and innovation by facilitating strong, enforceable, patents. For the patent system to enable the creation and diffusion of new technologies, patent validity-infringement-injunction rules must provide patent owners, especially small-independent inventors, the credible option of enforcing exclusivity. In making his proposal, Kieff addresses current reform discourse that would weaken patents, and consequently exacerbate rather than solve anti-competitive effects and blocking of downstream access to inventions.

When patents are not enforced by a strong right to exclude, the patentee's incentives to enter into deals are disrupted. Court-awarded damages in general often are seen to under-compensate for harms compared to the price a property owner would receive for selling permission to infringe, which is typically why the infringer decides to infringe in the first place.

...a US patent owner does not have...incentive to avoid open transactions. Transactions over patents... are important in monetising the value of the patent... patentees have a strong incentive to encourage use.

Refusing to enforce patents when there is a breakdown in negotiations would suffer a fundamental circularity that would create perverse, harmful incentives. If the ability to avoid the injunction hinged upon the failure of a deal getting done, then there would be a markedly increased incentive for those wanting to obtain use through court-ordered terms to resist striking licensing deals. A legal test that rewards a failure to cooperate would lead to a decrease in cooperation, not an increase.

Re: The Pizzaright Fallacy in Patent Law

Noel Le — Tue, 20 Feb 2007 08:39:18 -0000

Tim, I was just having fun with you using our server space!

Its in the spirit of *debate* to engage you when you criticize posts on IPcentral. Otherwise, (at least I) would just ignore it.

Re: Invention vs. Innovation

Noel Le — Tue, 20 Feb 2007 10:44:36 -0000

Tim, the distinction between innovation and invention is rather important. See Joshua Lerner and Marco Iansiti, Evidence Regarding Microsoft and Innovation, AEI-Brookings Joint Center Publication (2002).

Invention, by itself is not as important as innovation. F. Scott Kieff, in the paper you talked about earlier, argued that society will benefit more from the commercialization of inventions (which turns them into innovations) than by inventions themselves, because of: 1) positive externalities resulting from the diffusion, refinment process, 2) consumer access to new technologies.

I would not downplay invention as being necessarily easy either. Note that the creation of early Internet technologies took place only with billions of dollars in DARPA funding, and entailed several decades of improvements until DARPA enlisted private firms to help refine the technologies.

PS- I don't see how your post relates to patents. For instance, one can take either your post or Masnick's post, and use them to *support* the role of patents; since Apple was able to commercialize its technologies into a sleek mass market product and non-patenting firms were not.

Re: Invention vs. Innovation

Noel Le — Tue, 20 Feb 2007 12:40:12 -0000

Tim,

Its difficult to pin-point direct causality in innovation. Granted, the American capital market/VC system, education system, specialty research centers and patent system contribute to innovation. But none of these alone would facilitate innovation.

I was not claiming that Apple would *not* have created the iPhone without patents. Rather, I was commenting on how your post suggested that Apple has successfully commercialized a set of technologies in which it holds patents. I was just saying its hard to read how you were making the argument that patents were not important to Apple.

PS- I would argue that patents will enable Apple to improve on the iPhone. Lets wait and see.

Re: Invention vs. Innovation

Noel Le — Tue, 20 Feb 2007 12:46:50 -0000

PPS- the process of Apple *improving* the iPhone would be called *diffusion*, whereby an innovator releases one generation of a product, takes in consumer signals that would suggest means of increasing societal adoption, and then refines the product in a later generation. This whole process is part of commercialization. See Hall, Bronwyn H., "Innovation and Diffusion" (January 2004), NBER Working Paper No. W10212.

Whether Apple will be more likely to invest in the diffusion process because of the exclusivity enabled by its patents is something we can witness in real-time, if Tim continues on his Apple binge.

Re: Invention vs. Innovation

Noel Le — Tue, 20 Feb 2007 14:44:26 -0000

Tim, I was merely tracing the fact-pattern of your post when I said that Apple successfully commercialized technologies in the iPhone and previous inventors with similar technologies were not. The extent of a correlation between Apple's achievement and patents is yet to be seen, but you have to admit that a firm that commercializes a technology benefits the public more than one that merely invents it.

Re: Peer Production and Spontaneous Order at Catallarchy

Noel Le — Tue, 20 Feb 2007 19:12:37 -0000

It's a shame that some libertarians see open source software, Wikipedia, and other peer-produced wealth as a threat to the free market rather than a natural complement.

Well, then don't propose to eliminate software patents, repeal the DMCA and try to hasten the demise of IP firms in support of peer-production. That might make your arguments at least more maintstream, and not appear as if they reflect some purely ideological bent.

Re: Invention vs. Innovation

Noel Le — Tue, 20 Feb 2007 19:15:36 -0000

Exactly....

Re: Peer Production and Spontaneous Order at Catallarchy

Noel Le — Tue, 20 Feb 2007 20:54:58 -0000

Mr. Harris,

We can argue about the DMCA and software patents some other time. But I would like to tell you that even though I support the DMCA and software patents, my views are at least qualified.

For instance, I've written extensively on reverse engineering- recently arguing that Steve Jobs could settle the FairPlay catastrophe most efficiently by waiving some rights under the DMCA to allow others to tinker with FairPlay without fear of liability. I've also written on the fact that while software patents spur innovation in the software industry, that they should be of narrow scope, with their claims disclosing more technical information.

You will find no similar qualifications from most who embrace peer-production. They think they will take over the world; even if they need to repeal every law to do so. They're all about blind ideology; which is why they end up with extreme arguments such as those I note above. The free culture movement may say it supports "balanced IPR" policy, but then they criticize every and any instance where IP owners leverage their assets.

I especially find it a bit humorous that some free culture proponents want to evaluate "freedom" in every microscopic instance, rather than trying to see how some regulations and situations where freedom is subverted may lead to greater overall freedom. I mean, I actually got into a debate with somebody on IPcentral that sounded like he wanted to abolish the laws of larceny and tresspass since they may be curbs to freedom

Richard Bennett is fundemental right in his remarks above.

Re: Invention vs. Innovation

Noel Le — Wed, 21 Feb 2007 21:41:49 -0000

Michael, the patent system has long entailed two aspects in promoting the "Progress of Science and Useful Arts. Number 1 is the ex ante justification for patents, which is commonly known as the incentive theory that aims to resolve the problem of public goods. A lot of literature aiming to debunk the importance focuses on this prong. Number 2 is the ex post justification for patents; scholars from Mark Lemley, Edmund Kitch, John Duffy, Kenneth Dam and F. Scott Kieff have written on this prong- patents help commercialization and the diffusion of innovation. From what I've seen on TLF, there is sometimes utter misunderstanding regarding the second ex post aspect of patents; which is odd, considering that the Bayh-Dole Act, the patenting practices of IBM, Microsoft, Apple and most academic literature supporting patents refers to the ex post basis for them.

Herman, Louis, Blinx, Michael; you folks put up some great posts.

Re: Ones and Zeros Do the Darnedest Things

Noel Le — Sat, 24 Feb 2007 17:36:48 -0000

Tim, let me get this straight. Are you arguing that software is *pure information*, akin to blueprints and recipes, and without any physical presence at all? Is your bottom line that software cannot be a component of a patented invention?

Re: Ones and Zeros Do the Darnedest Things

Noel Le — Sat, 24 Feb 2007 18:58:33 -0000

Well, there are two questions before the court on Section 271(f): 1) whether software contained on the golden disk can be a component of a patented invention, 2) whether copies made from a golden disk shipped from the US to an overseas location are "supplied" from the US.

Microsoft claims NO to both questions. However, and quite interestingly, many of its supporters argue that software CAN BE a component of a patented invention under 271(f), and thus differ with Microsoft on the first question.

There seems to be two branches of the view that software can comprise a "component:" 1) software has physical bearing, 2) a "component" need not have physical bearing. Yes, I know, these two arguments conflict with one another:)

Also, Tim, on another post you refered to Theodore Olson as "Microsoft's lawyer." I believe Ted Olson is the US Solicitor General arguing for Microsoft, rather than being outside counsel retained by Microsoft or one of its inhouse counsels. Correct me if I'm wrong.

Re: Ones and Zeros Do the Darnedest Things

Noel Le — Sat, 24 Feb 2007 19:10:43 -0000

Sorry, I meant that the arguments proffered by Microsoft's friends, which disagree with Microsoft's position on whether software can comprise a compone of a patented invention make each other, and the Microsoft argument, moot. You basically have 3 vastly contrasting views on the issue of a "component."

Another interesting aspect of this case concerns terms tossed around by policy commentators, including myself. We talk about "information goods," "software patents" and "patened ideas." Its interesting that the Supreme Court has gone through such effort to clarify legal analysis surrounding concepts that are obscurred by their literal construction and casual every day use.

Re: Is the SFLC Tilting at Windmills?

Noel Le — Sun, 25 Feb 2007 21:59:55 -0000

*** The courts have long held that laws of nature, abstract ideas, and mathematical algorithms are not eligible for patent protection. Software is nothing more than a description of a mathematical algorithm.***

Doesn't everyone agree that laws of nature, abstract ideas, and mathematical algorithms are not patentable, and that software patents entail more than these items? Is Moglen, or you, claiming that software cannot be an essential part of a patented invention?

***Moglen claims that the federal circuit has misread the Supreme Court's precedents on the patentability of software from the 1970s and early 1980s in a way that removes almost any limit on the scope of patentable subject matter.***

So, since State Street, what new subject matters besides business methods and software have inventors been granted patents for? I'm just curious.

***The only way the court is likely to go for that [eliminating software patents] is if it is convinced that the consequences of continuing to allow software patents would be even worse. Maybe a few more high-profile patent trolling cases...***

Also, various litigation and administrative reforms would probably have to prove ineffective in improving the patent system.

Re: Wu, Skype, Walled Gardens and “Openness”

Noel Le — Mon, 26 Feb 2007 09:25:23 -0000

It sounds like Carlo would also argue that we should let the market settle DRM issues rather than repeal the DMCA.

I generally find TechDirt trying too hard to be catchy. Their goal in critiquing any business model or policy is to show that its not 100% rational or logical. Now, thats both the role and value of analysts, but only after you realize that business and policy decisions can be necessary or valuable without being 100%, and thereby cut the analysts out of the final decision making. Otherwise society would be hamstrung and make no decisions at all.

Re: Blast from the Past

Noel Le — Mon, 26 Feb 2007 09:33:14 -0000

I'll make sure to bring up the "fallacy of asymmetric idealization" analogy the next time someone raises makes the idiotic argument that IPRs are simply "government granted monopolies" and that because they are a form of "regulation," we should per se do without them.

Re: Is the SFLC Tilting at Windmills?

Noel Le — Mon, 26 Feb 2007 10:53:41 -0000

Thanks Ned. I'll look at this to see if it arises from State Street.

Re: Blast from the Past

Noel Le — Mon, 26 Feb 2007 12:00:07 -0000

Harold, those are some good points. Yes, some libertarians can sound like anarchists, who believe there is some primordial and absolute free market with perfect competition that societies should strive for. If such a notion did not sound funny enough philosophically, wait til you see it clothed in copyright and patent policy language.

Re: Blast from the Past

Noel Le — Mon, 26 Feb 2007 12:13:34 -0000

Oh yeah, the religious sect of the libertarian wing does not just fight government regulation, but has taken on vilifying corporations. So, who are these folks that downplay the importance of government and the industrial private sector? They must be really important, and part of some revolution, huh.

Re: Patent Legislation To Come Before Copyright Legislation

Noel Le — Mon, 26 Feb 2007 15:08:14 -0000

Nice post.

While it would be an unfortunate patent civil war of sorts to have high-tech go up against big pharma, its also unfortunate that the pharmaceutical sector does not want to modernize patent policy to address how innovation and industry have progressed over the past few decades.

The FOSS movement, and others who aim suspicious glances towards the IP part of the tech industry, are really looking in the wrong direction for those stalling the improvement of our patent system.

Re: Capitalists, Entrepreneurs, and Peer Production

Noel Le — Wed, 28 Feb 2007 09:32:20 -0000

Sorry, Richard, I"m usually with you, but not with the Craigslist example.

I like Masnick's comment. It can be generalized to the FOSS movement. If they can't compete with IP firms, then stop with the religious PR antics (I recall Red Hat saying their innovation is not tainted with capital, even though they're listed on the NASDAQ, have receieved VC and are obviously trying to push up sales). Further, software patents are not harming FOSS; as far as I see, its their business model thats keeping the $10 billion dollar annual revenue ceiling in place, not the threat of litigation. FOSS' criticism of software patents is merely a way to keep talking while its having a hard time competing.

This post is still odd. Tim misreads Epstein, interpreting him to be saying that what he's referring to (FOSS) does not exist, whereas Epstein is talking about the viability of FOSS. Tim, if you don't think FOSS benefits from formal capital structures in its inputs, like Epstein says, then tell Red Hat to get rid of its paid programmers.

Also, why is it so important that FOSS be considered under the terms "economic" and "entrepreneural?" Would FOSS receive more legitimacy? Any activity is "economic" in the widest sense, but then there are contexts where activity unconcerning capital is not factored in: look at our standard economic indicators, you're not suggesting that basic GDP and industrial growth metrics be changed to accomodate FOSS are you Tim? As far as entrepreneural, I haven't seen anybody say that peer-production or activity undertaken outside profit-motive is not entrepreneural.

Re: Sloppy Reporting on Patent Cases

Noel Le — Thu, 01 Mar 2007 16:27:43 -0000

***This is confused on a number of levels, but the most fundamental error—and, frankly, the one that causes people to be a lot more sympathetic to software patents than they ought to be***

Great to see you taking my advice Tim, and especially because you wrote a whole self-promoting post on taking my advice. I only told you at least 3 times coping is not necessarily pertinent when it comes to patents. Most recently, I gave this feedback to your American patent article.

Re: Sloppy Reporting on Patent Cases

Noel Le — Thu, 01 Mar 2007 16:42:04 -0000

Here are the posts (without hyperlinks in order to avoid the TLF spam filter):

1) TLF Post: Copying Innovation is Hard
2) TLF Post: But What Are Software Patents Good For? (where you famously noted that copying can be competition)
3) IPcentral Post: Patently Ridiculous, Really

Now, I'm not trying to claim that you are misinformed or newly informed Tim, I'm just suggesting that you probably should go easier on EFF and Beta News for making a, well, reasonable mistake.

Also, good job correcting Donald (not David) Stout's name. He needs all the press hits:)

Re: Sloppy Reporting on Patent Cases

Noel Le — Thu, 01 Mar 2007 17:41:07 -0000

Tim, the piece about you on Teleflex reported on your handling of the context surrounding an important Supreme Court case, where you tried to show your expertise after insulting a professor on the legal team based on a powerpoint. If you don't get that, well, now I understand your recent writings on Jane Ginsburg, F. Scott Kieff (in which you made Ed Felten look bad, not Professor Kieff), and Richard Epstein.

And yes, the Teleflex piece was no less clumsy than the Cato paper, which you can't even defend.

Re: Sloppy Reporting on Patent Cases

Noel Le — Thu, 01 Mar 2007 17:54:30 -0000

Oh, and no, I don't have any vendetta against you at all. I think I've engaged you in a valuable way so that you articulate some ideas more carefully now. So, no, no vendetta, if that is the question. This was an odd question, to be honest.

Re: Sloppy Reporting on Patent Cases

Noel Le — Thu, 01 Mar 2007 18:19:03 -0000

Tim, read above. I think you took my post the wrong way. I was NOT criticizing you for any lack of expertise, and I was not implying that. If thats what was on my mind, you know I would just say it. There is no point beating around the bush or waling on egg shells.

Rather, I was saying that you should go easy on EFF and Beta News.

And I called your post self-promoting because YOU said it was so at the end of the post.

We'll talk about function copying in patents the next time you write about AT&T; v Microsoft, and how your comments above suggest that software patents may be patents for functionality enabled by software:)

Re: Everyone’s a Deconstructionist Now

Noel Le — Wed, 07 Mar 2007 11:33:13 -0000

***I think part of the problem with the term "intellectual property" is that it encourages people to think about the legal regimes of copyright and patent—which are historically, legally, and economically distinct***

Tim, so what is wrong with thinking of copyrights and patens as different *kinds* of intellectual property? And exactly which academics lumped together copyrights and patents under the term *intellectual property*?

***This is a problem because often people will make arguments for or against "intellectual property" that only make sense with respect to copyright, but not patents—or vice versa.***

Yes, thats why context is important.

Re: Everyone’s a Deconstructionist Now

Noel Le — Wed, 07 Mar 2007 13:14:00 -0000

Doug, this might interest you- Daniel Laster, The Secret Is Out: Patent Law Preempts Mass Market License Terms Barring Reverse Engineering for Interoperability Purposes, ExpressO Preprint Series Working Paper 975 (February 2006).

As far as restricting contracts pertainable to IPRs, well, you have to think of the implications on FOSS licenses as well.

Re: Everyone’s a Deconstructionist Now

Noel Le — Wed, 07 Mar 2007 13:31:20 -0000

Doug, email me at nle@pff.org. I'll send you the article. I don't want to post the link as it will get stuck in the spam filter.

Re: Sabrina Safrin at Volokh on Chain Reactions in IP

Noel Le — Wed, 07 Mar 2007 13:45:02 -0000

Jim, if you're interested in the topic, here are some good articles on the inter-relatedness between IPRs, and IPRs and the public domain.

Stuart Graham, The Complementary Use of Intellectual Property in Software: Evidence from Litigation, CENTER FOR EUROPEAN ECONOMIC RESEARCH (ZEW), June 2004. Mannheim, Germany.

Robert Merges, A New Dynamism in the Public Domain, University of Chicago Law Review, Vol. 71, pp. 183-203, 2004.

Re: Everyone’s a Deconstructionist Now

Noel Le — Thu, 08 Mar 2007 14:08:22 -0000

Doug, also check out these articles which propose several limitations to the DMCA's anticircumvention provision leveraging existing copyright doctrine. I found them good readings, and obviously because I'm introducing them to you, I agree to some extent that the anticircumvention provision should not act as a draconian barr to potentially important reverse engineering and fair use.

Tim, if you read these articles and consequently change your argument to repeal the DMCA, I might spend a day writing in support of Linux and against software patents. Perhaps April 1st may be a good target date:)

Donna L. Lee, Reverse Engineering of Computer Programs Under the DMCA: Recognizing A "Fair Access" Defense, 10 Marq. Intell. Prop. L. Rev. 537 (Summer 2006).

Victor Nicholas Knipe from Georgetown University Law Center. Private Copyright: Digital Rights Management Systems and the Consumer, ExpressO Preprint Series Working Paper 2024 (February 2007). Available at Bepress.

Re: Then and Now

Noel Le — Thu, 08 Mar 2007 21:36:13 -0000

Hey, years ago Professor Lessig was arguing how FOSS is more innovative than proprietary technologies. That hopeless argument has been dropped for the claim that FOSS gives some vague notion of freedom, that is unless you consider every half finished project on SourceForce an innovation.

I love it when Tim sees me write-up an article or speech on IPcentral, then hops over to TLF to write on the same thing. Its pretty evidently those are hurried posts...

Re: Patent Troll Smacked Down

Noel Le — Thu, 08 Mar 2007 21:44:59 -0000

Well, you have to understand Masnick's business. He doesn't consult on R&D; strategy, basic research, product development, licensing, venture capital or other aspects of the business relating to patents. He does specialize on "innovation" as he states it, but as far as I see, he does competitive intelligence, branding, PR etc, things that come after a product is invented and to some extent, after it has been commmercialized. Thus, I don't see what Masnick's interest in patents is, other than the fact that by downplaying them, he's trying to get companies to focus on the aspects of innovation his firm works on. Nothing wrong with that, and some of his patent writing is good, but I find him often too extreme.

Tim, it might have been better for this case to proceed to some extent just so the patent could either be validated or invalidated. THe judge simply found the patent not to apply to Google's technology.

Re: Then and Now

Noel Le — Thu, 08 Mar 2007 23:01:57 -0000

I'd say those projects are at a mature stage Enigma. I did not say that there are zero FOSS innovations.

No, there is no consensus that FOSS is more innovative. There is a consensus that its at least viable in some form, and in my opinion, that form is with heavy corporate subsidy. FOSS will remain limited by its more extreme licensing models though.

Re: Then and Now

Noel Le — Fri, 09 Mar 2007 06:05:04 -0000

Heck, Microsoft did not think the Internet was a big deal for a while.

I don't see how a 16 year old statement is any more pertinent to Microsoft's patent policy views than a misunderstanding of the digital economy they held as recently as 8 years ago.

Besides Billg, there is another prominent fellow who once opposed software patents, but is now one of their biggest supporters: Robert Merges.

Re: Would Your Favorite Website be Banned by DOPA?

Noel Le — Sun, 11 Mar 2007 13:55:43 -0000

Adam, it sounds like the proposed regulations would affect instant messaging services, and their complementary features (homepages, user profiles, publicly viewable buddy lists, etc). I use AIM and MSN, and it seems like these two services would fall under the specs you outline above.

Re: FLOSS: The Software Hare that Beats the Proprietary Turtle?

Noel Le — Mon, 12 Mar 2007 00:11:42 -0000

Nice summary Braden.

The relationship between Unix and Linux is closer than Tim lets on above- Linux is an evolved and standardized form of Unix; however, I've never seen this line of argument as particularly important. FOSS critics will use it as a way of showing how FOSS is inherently the result of cumulative innovation; and with the length of time that FOSS has been around it should have made more ground by now. FOSS proponents will try to dispel the argument to show that while FOSS does rely particularly on cumulative development, thats its capable of pioneering, groundbreaking innovation. The debate hasn't changed in the past several years that I've followed it, and I believe it ignores several more important issues.

1) Did FOSS forget the desktop? When is this going to happen, and what does it say about FOSS' potential reach in the technological community? FOSS will not only continue to co-exist with proprietary technologies, it will need them.

2) What is really keeping FOSS from reaching its potential? Is it software patents? No, the opposition to software patents from the FOSS community comes from ideological arguments, and ones about the *potential* harms of software patents. Is it Microsoft? Well, yes, if you consider competition harmful. The more comprehensive answer is FOSS, at least its fanatic wing, is holding FOSS back.

3) FOSS needs to get more serious, period. All these rain dances about a revolution and freedom need to be translated to your basic business language if FOSS wants to appeal to a broader demographic. I notice a lot of the BSD crowd has gotten smart, and practical, however, the religious holdouts, a la the Stallman camp, are stubborn as ever.

Re: FLOSS: The Software Hare that Beats the Proprietary Turtle?

Noel Le — Mon, 12 Mar 2007 00:31:12 -0000

My apologies, its late on the east coast.

I forgot to mention- it takes a gaping lack in proportionality to say FOSS will overtake all proprietary technologies, or that all software will be peer-produced in the future, as some FOSS supporters have claimed.

This first argument is addressed by the fact that FOSS technologies need proprietary technologies as long as FOSS cannot create it own desktop and mass consumer apps; the second point is addressed by the simply concept that 99% of the population would rather not buy a computer system created by someone who only profits if it doesn't work well.

Re: Heritage Foundation Event: QUALCOMM Founder on Patents, Thursday, March 22

Noel Le — Mon, 19 Mar 2007 18:16:51 -0000

Thanks James. Looks like an interesting event.

Re: Heritage Foundation Event: QUALCOMM Founder on Patents, Thursday, March 22

Noel Le — Mon, 19 Mar 2007 18:17:30 -0000

Oh, and here are some previous remarks by Dr. Jacobs on patents: www.pff.org/news/news/2006/091906_jacobs_speech...

Re: Framing the DRM Debate

Noel Le — Tue, 20 Mar 2007 12:54:43 -0000

Thats the kind of response Tim was looking for, as was Jim Harper when he was fishing for comments on PFF last week.

Re: Framing the DRM Debate

Noel Le — Tue, 20 Mar 2007 14:26:28 -0000

Surprise, surprise. A TLF post on framing results in framed responses:)

Doug, did you read those articles I suggested.

Re: Picker on Lessig on Common Law Copyright

Noel Le — Thu, 22 Mar 2007 23:40:41 -0000

***As I argued in my DMCA paper, the courts were doing a pretty good job of applying copyright law to high-tech devices until Congress put its thumb on the scale with the DMCA.***

Tim, allow the courts to do their job in setting DMCA precedence. One of the first things that came to mind in reading your paper is that the courts have no power to outline application of the DMCA.

Have faith, grasshoppa...

Re: Picker on Lessig on Common Law Copyright

Noel Le — Thu, 22 Mar 2007 23:46:45 -0000

***I'm not sure if Lessig was really advocating for a greater role for Congress in the piece -- but rather is just pointing out what he sees as inconsistencies in the SC's rulings.***

Lessig (and EFF) should stop filing cases just to make a point when they know their arguments are bogus...

Re: When “Reasonable” Isn’t

Noel Le — Fri, 23 Mar 2007 16:46:10 -0000

***The law needs to be clear and unambiguous enough that most legitimate innovators are never sued at all, or at a minimum win their lawsuits quickly and decisively.***

You seem to waver between equating flexibility in copyright policy with: 1) lack of bright lines stifling personal and creative freedom and 2) the adaptiveness with which courts can apply copyright doctrine. An example of 1 is your DMCA paper, an example of 2 is your recent post on Prof Picker

Re: When “Reasonable” Isn’t

Noel Le — Fri, 23 Mar 2007 18:47:03 -0000

Well, you state the issue well here, but in your DMCA paper did not follow through with illustrating it in the case analysis. You did not mention several DMCA cases where courts have limited application of the anti-circumvention provision. You reviewed only a limited set of DMCA cases as if they were the sole interpretation of 1201- a puzzling maneuver since there are few DMCA 1201 cases to being with. The implication on your analysis was that your argument did not fully present how courts have not always weighed down negatively on reverse engineering activity; a concept that contradicts your conclusion.

Re: Epstein, Monopolies, and Legal Sophistry

Noel Le — Sat, 24 Mar 2007 18:49:32 -0000

I suspect the answer, in at least Epstein’s case, is that he doesn’t understand that prohibiting circumvention of DRM is equivalent to giving the DRM vendor a monopoly on compatible devices.

Tim, but is there a per se prohibition on circumventing DRM? It appears one would conclude such a prohibition if one assumed that any deterrance to circumvention is a per se ban on it:)

And exactly how do you define "monopoly" in this case, specifically w/r/t innovation and competition.

To be frank, it seems like you understand the technology industries based on a flow chart and keywords, that looks something like this: unfree access = monopoly = stifled innovation.

Re: When “Reasonable” Isn’t

Noel Le — Sat, 24 Mar 2007 18:53:37 -0000

Doug, you rightfully call out that Tim's main criticism of the DMCA is that it exist in the first place, thus he does not place that much importance on actually looking carefully into the cases.

Granted, I believe the anticircumvention provision and its exception should be clarified, but right now it appears that will only happen through the courts. Based on Tim's perspective, he would oppose improving the DMCA, since he doesn't think such cases should be brought in the first place.

Re: Writers, Programmers, and Patents

Noel Le — Mon, 26 Mar 2007 19:53:26 -0000

Hmmm. You make some good points here Tim, but one or two analogies make the argument less serious.

'better than that pizzaright analogy you used one time though. Oh man...

Re: Microsoft joins the 21st Century

Noel Le — Mon, 26 Mar 2007 20:21:42 -0000

Apple has always been, and still is, the darling of techies; especially those who never cared for Microsoft. I'm not sure what kind of dynamic exists between Linux/Unix fans and Apple though.

Re: VoIP versus the Patent System

Noel Le — Wed, 28 Mar 2007 12:07:09 -0000

Tim, you assume that patents and innovation have a 1-1 correlation. Nobody argues that, however, this assumption underlies most of your patent of the week series as far as I see.

Your assumption actually would lead to the conclusion that the more patents, the more innovative a firm is. In other words, you assume that nuclear stockpiling represents a well functioning patent system.

Re: The DMCA Isn’t All Bad (Really!)

Noel Le — Wed, 28 Mar 2007 12:39:44 -0000

***For all of their flaws, the notice-and-takedown provisions seem to strike a pretty good balance. I would be hesitant to start lobbying Congress to re-consider that part of the DMCA before we have a clear idea of what ought to replace it.***

What?! Tim, are you feeling OK? This does not sound like you:)

Re: James V. Delong on GPL3

Noel Le — Fri, 30 Mar 2007 19:07:31 -0000

If GPL3 goes nowhere, what will happy to the great proletarian revolution?

Re: James V. Delong on GPL3, Again.

Noel Le — Mon, 02 Apr 2007 15:14:30 -0000

Obviously, free software fans like unclarity that would only decided by one Richard Stallman. Every jump of logic in their movement is glossed over as part of a revolution. And if you've read this board enough, you'd see that free software fans declare every innovation obvious and simple, despite the limited success of free software; which looks even bleaker now moving forward.

Hail to the proletariat!

Re: James V. Delong on GPL3, Again.

Noel Le — Mon, 02 Apr 2007 15:19:21 -0000

...and its also strange that some free software fans romantically lament that "some innovations might not happen" simply because various circumvention tools or P2P technologies are not given free reign; when they would deter a much larger scale of innovation simply for Stallman's four freedoms.

Re: GPL v.3 - I Care Because Markets Care

Noel Le — Wed, 04 Apr 2007 09:14:52 -0000

I haven't followed all of ACT's work, but find it commendable they disclose their supporters. I disagree with Doug's point, however, that ACT's funding somehow affects the range of views the organization can express. That argument assumes that ACT's supporters align on all issues. If ACT was constrained by its supporters' views, it would be virtually impossible for the organization to express any views at all.

Richard, I know Mr. Enigma can be snarky at times, but he does have many good ideas.

Re: James V. Delong on GPL3, Again.

Noel Le — Wed, 04 Apr 2007 10:13:03 -0000

Mr. Enigma, I have no doubt that FOSS is here to stay, but what about growth?

Sure, IBM and Oracle support FOSS, but don't be so blind as to think its for anything other than commercial reasons. FOSS' commercial growth is clearly not a priority of the FSF.

Re: GPL v.3 - I Care Because Markets Care

Noel Le — Wed, 04 Apr 2007 11:36:13 -0000

I'll let ACT speak for itself; but Doug, the fact that the organization discloses its supporters is more significant than you seem to acknowledge.

Re: Free Software and the Big Picture

Noel Le — Wed, 04 Apr 2007 13:34:11 -0000

Painting Stallman as a libertarian is hardly flattering to any of the organizations associated with TLF.

To support Stallman through applying some loose definition of libertarianism shows more ignorance of the tech industry than anything else.

Innovators are concerned with developing new products, consumers are concerned with getting good products; those who argue that innovation should reflect political ideology are concerned with neither.

Tim, do Stallman's four freedoms pass the pizzaright analogy:)

Re: Free Software and the Big Picture

Noel Le — Wed, 04 Apr 2007 14:05:44 -0000

So Tim, you do not claim Stallman is a libertarian, but you claim that libertarian principles are consistent with Stallman's views. In other words, you're saying that while Stallman may not sympathize with our views, we should sympathize with his.

Re: Free Software and the Big Picture

Noel Le — Wed, 04 Apr 2007 15:20:16 -0000

The rights GPL takes away from potential modifiers of code are rights that anti-IP libertarians, as well as anti-IP others, don't think *anyone* should have in the first place.

Exactly, the GPL is about taking away freedoms as much as it is about freedoms; specifically, the GPL is about replacing freedoms that stir innovation, consumer welfare and societal progress with Stallman's four freedoms. The GPL is not about absolute freedom, productive freedom or utilitarian freedom; its anti-social, non-conducive to technical progress and more than anything else (including software patents, digital copyrights or monopolistic firms), will hamper the growth of free software. The GPL is hardly anything by which to guide the technology industries, or to cite as consistent with important political schools.

Re: Free Software and the Big Picture

Noel Le — Wed, 04 Apr 2007 23:56:11 -0000

Free software DRM is illegal because organizations like the DVD-CCA won't license it, and under the DMCA it's illegal to build unauthorized DRM software. Repeal the DMCA, and Linux distributions would start bundling DVD players with their software in a matter of weeks. How is that Stallman's fault that proprietary software vendors lobbied for legislation that effectively makes it illegal for free software that accesses DRMed content?

Tim, can you clarify, perhaps by noting how:

1) FOSS DRM is illegal,
2) “unauthorized” has been treatd in DMCA 1201 case law,
3) repealing the DMCA is necessary given that you are wrong with the first two points.

Here is a start. First, qualify what you mean by DRM. If you mean DRM generally, then you’re obviously wrong; FOSS technologies can leverage encryption, a form of DRM. Second, “unauthorized” in the DMCA anticircumvention cases has pertained to systems breaking the intent of the circumvented DRM (by allowing unauthorized use or copying of media) rather than to the circumvention device being unauthorized. Third, can you offer a real reason to repeal the DMCA in terms of how it harms consumers or innovation; rather than Stallman’s four freedoms, which judging by your incessant rants against the DMCA, you hold dear to heart.

Re: Bob Sutor’s Blog on GPL3

Noel Le — Thu, 05 Apr 2007 15:56:00 -0000

If IBM did not profit from FOSS, its investments would still be the best PR against Microsoft that money can buy.

Re: The Technology Liberation Front » Archive » New Gig

Noel Le — Tue, 10 Apr 2007 17:58:02 -0000

Cool!

Re: Klemens on the Federal Circuit

Noel Le — Sat, 21 Apr 2007 18:24:16 -0000

One of the best articles I've seen that talks about how courts, especially the CAFC, can approach patent cases with some concern over the effects on innovation and the meaning of the Patent Clause: Dan L. Burk and Mark A. Lemley, Policy Levers in Patent Law, 89 Virginia Law Review 1575 (2003).

I have a review of the article somewhere on IPcentral. The gist: innovation in the early technology industries proceeded without patents, but economic and industry developments have made patents important for the cumulative path of software/Internet innovation. These industries will benefit from patents that are narrow in scope, which will induce investments in, commercialization of and incremental improvements on, technologies.

Re: Tony Healy on GPL3 and ASP Platforms

Noel Le — Tue, 24 Apr 2007 12:08:16 -0000

Doni, because that would impinge on the "four freedoms" of the proletariats and the Dear Leader.

Re: Tony Healy on GPL3 and ASP Platforms

Noel Le — Tue, 24 Apr 2007 21:08:57 -0000

Yes, Enigma, yet IBM has been the patenting leader in the industry for years. The difference between IBM's proprietary and FOSS-services business divisions is not the holy ground they walk on, but shifts in the value chain. I know its boring, not alluring and not revolutionary. Sorry:)

Tony's point above has been obvious to many of us: FOSS firms will tout freedom and free when it serves them, but economic appropriation has always been part of the game. So, who loses when IBM prattles about freedom and FOSS? Well, its programmers who think that IBM really means what it says while its making money off their work. I wonder if IBM service consultants say a prayer for the four freedoms each time they charge clients, before laughing all the way to the bank.

With regard to Google, Tony brings up a fascinating picture. Recall that the FSF opposed the MSFT-Novell pact because it supposedly created two classes of FOSS users. But thats exactly what the FSF has done with its slackness around the ASP loophole. Apparently, Stallman is willing to make concessions when you're a big guy like Google, while he bullies individual programmers.

Re: Klemens on the Federal Circuit

Noel Le — Tue, 24 Apr 2007 21:30:00 -0000

GMUSL is right. Its the system and the aggregate effects of patents that matter, its not one patent per week, nor anecdotal evidence, often cited by Tim. Pointing out that one thing wrong, even if you do it on the daily, and trying to generalize it to say the whole system and its impact are bad for innovation, well, that lacks sense of proportion as well as perspective.

Its interesting to read Tim's interpretation of the Patent Clause. On the one hand, he seems to advocate a subjective standard for patentability and validity, where a judge should be expected to understand and administer innovation with no standard; on the other hand, Tim assumes there can only be one kind of relationship between patents and innovation, and thereby has no awarenes and gives absolutely no analysis of how "to promote the progress" has been treated by courts and economists for the past 4 or 5 decades.

Re: The Technology Liberation Front » Archive » Tabbed Windows: Patented!

Noel Le — Tue, 24 Apr 2007 22:37:17 -0000

Tim, please tell us your understanding of how patents are associated with innovation. Hopefully, your explanation will account for the half dozen or so theories developed by economists in the past few decades, or even hundred years. Also, detail how you interpret "to promote the progress," and how that has been associated with patents and innovation by policy makers and courts. It seems that you have a certain conception of your own, but I don't want to put words into your mouth.

As for who would argue that the above patent should have been granted? Well, I'm guessing that a certain scholar that supports relatively obvious patents for inventions without unclear commercial value, may support it. However, he would probably argue that the patent's scope should be interpreted narrowly, and its scope further limited by technical disclosure in the claim. Of course, I could tell you who it is, or simply do a write-up on IPcentral about him:)

Re: Tony Healy on GPL3 and ASP Platforms

Noel Le — Wed, 25 Apr 2007 14:11:36 -0000

Doug, I was talking about individual programmers who give away their work and have big companies make money off of it. The FSF is dedicated to preserving that servitude.

No Luis, I don't get a check from MSFT.

Re: The Technology Liberation Front » Archive » Tabbed Windows: Patented!

Noel Le — Thu, 26 Apr 2007 11:46:20 -0000

I've never heard of the book before Enigma. If you've read it, perhaps you can send me a summary.

Tim has written about a dozen posts on patents in the past week, and in almost every one he makes some claim to the tune of: "but I don't see how" or "can somebody tell me why" or "I'm confused." Well it might be that he's not a patent agent, he takes a skewed view of innovation and does not really consider some basic elements such as those I outline above. Granted, I will probably disagree with his responses, but I posed the questions so he would at least address some recurring themes.

Re: The Technology Liberation Front » Archive » Tabbed Windows: Patented!

Noel Le — Thu, 26 Apr 2007 13:20:01 -0000

No Doug, I meant patent agent. TLF has its own post-grant opposition system, with Tim as the patent-agent and chief:)

Happy world IP day to you too!

Re: The Technology Liberation Front » Archive » Tabbed Windows: Patented!

Noel Le — Thu, 26 Apr 2007 13:22:38 -0000

Oh, and Doug, why don't you answer my questions above since Tim won't.

Re: The Technology Liberation Front » Archive » Tabbed Windows: Patented!

Noel Le — Thu, 26 Apr 2007 14:14:34 -0000

Yes, thanks. Always nice talking to you Doug:)

Tim should put a disclaimer on this post: "only rant in approval, but don't ask critical questions."

Re: DRM Grieving Process Continues

Noel Le — Wed, 02 May 2007 15:05:12 -0000

Stages of DRM valuation: denial, anger, bargaining, depression, and acceptance.

Yes, its great supporters of DRM are at the bargaining stage. DRM opponents are still at the denial stage. Keep writing...

Re: Jim Delong on the New and Improved GPL, from CNET

Noel Le — Thu, 03 May 2007 21:34:39 -0000

Don, any corporate counsel who publicly comments on GPL3 must be very confident in what is said, or very idiotic. Of course, the license is not even finalized yet, but you can surmise corporate counsel opinion on a process where Stallman holds the GPL pen.

Sorry, but I see coroporations as all the same (yawn:)- they look for profit/growth, guard their back (ahem, bank), and they speak when it helps them. Interpret the silence over GPL3 along these lines.

Also, Don, you post a pretty good list of corporations that deploy FOSS. Yes, these firms also hold patents- lending to the obvious conclusion that firms can support FOSS and patents at the same time (I always thought so). So what could possibly curb further proliferation of FOSS? Your answer- Stallman.

Re: The Law Is an Ass

Noel Le — Mon, 07 May 2007 16:11:36 -0000

***why is the burden of proof on DRM critics to come up with a system that works where DRM doesn't?***

Because its not your money and livelihood you're risking with these calls for freedom to tinker.

Re: Microsoft’s Shell Game

Noel Le — Sun, 13 May 2007 22:12:29 -0000

Tim, you make it sound like the article was written by the Microsoft PR department. I found it rather fair- Parloff took shots at both sides, and in my view leaned a bit to FOSS.

PS- I believe Parloff writes for Fortune, not Forbes.

Re: Microsoft’s Shell Game

Noel Le — Sun, 13 May 2007 22:25:15 -0000

It sounded like a gratuitous gesture given the rest of the sentence, where you go on to typify Parloff as an uninformed journalist, call the public ignorant of patent issues and accuse Microsoft of a conspiracy.

Overall, Parloff does a good job of summarizing the dispute, but like most journalists, he lets Microsoft get away with exploiting the public’s ignorance of how the patent system works to create a misleading impression about the conflict...

Re: Microsoft’s Shell Game

Noel Le — Mon, 14 May 2007 13:49:25 -0000

Jeremy, you raise the issue that inventions have a high probability of “violating” a patent. Tell me how this is significant.

Lets take a step back. An inventor who licenses or arrives at some agreement with a patent holder does not violate or infringe on the patent. Microsoft has tried to work with other firms on diffusing its patents, and in leveraging others' intellectual property in its products. That’s good for the technological community because it furthers the process of commercialization, its good for creators because they share important knowledge and good for consumers because more products get to the market.

Re: Competition is a Feature, not a Bug

Noel Le — Tue, 15 May 2007 10:27:49 -0000

Tim writes: "You've never heard of lawyers or doctors doing pro bono work?"

Yes, everyone has heard of pro bono work, but in any other field, its not called a religious revolution, and those doing it do not believe that pro bono work will replace paid workers. Further, those who undertake pro bono work usually have jobs, whereas with FOSS volunteers, their reward is a paid job (the entire touting freedom thing is just to make themselves feel better that they are unemployed).

Re: Competition is a Feature, not a Bug

Noel Le — Tue, 15 May 2007 12:46:24 -0000

***Most of their "product" is in fact the work of others outside the company.***]

MikeT, a good percentage of Microsoft and Apple technologies are developed outside the firm. These companies license intellectual property from others; specialist firms that excel in niche areas of technology. These outside firms are merely "inputs" for Apple and Microsoft; and they are paid for their intellectual property. FOSS development on the other hand, where volunteer developers are merely inputs for Red Hat and IBM business lines, have no formalized process of integrated external inputs. I wonder what would happen if Red Hat and IBM had to pay these developers.

Re: Competition is a Feature, not a Bug

Noel Le — Tue, 15 May 2007 15:48:00 -0000

Tim, review Cnet and tell me how many stories you find on Microsoft cross-licensing with other firms.

Re: A Silly Critique of My DMCA Paper

Noel Le — Sun, 20 May 2007 13:21:43 -0000

I love it when Tim calls something *silly*, *obtuse* or *ridiciculous*. Thats his main point, so no need to read on.

Neither DRM nor the DMCA is meant to *stop* piracy; so I'm not sure where you're going with this Doug. DRM and the DMCA are meant to reduce piracy to the extent economical for creators to tap the Internet for business models. Its not economical for IP holders to clamp down on each instance of piracy, and they don't expect DRM or the DMCA to do this for them.

In my view, some level of piracy is good, when it entails transactions that would not have resulted in sales (deadweight loss). The thresshold is very low however.

This does not mean that piracy should be applauded or encouraged. Even with aggressive enforcement, some piracy will still occur and you can assume that when the RIAA and MPAA seek individual infringers, that they're still leaving a good number of pirates untouched. Thus, the efforts of the RIAA and MPAA should be applauded to punish criminals (and they are criminals), with the knowledge that some low levels of piracy still occurs that may be beneficial to society.

Re: A Silly Critique of My DMCA Paper

Noel Le — Sun, 20 May 2007 14:03:45 -0000

Tim, its very very very evident Hollar has read your paper since he nails down your assumptions and methods of argument, some of which I and others have called-out.

Not that I've talked to Professor Hollar about his paper or your paper, but I would wager that for any part of his critique, I can pinpoint the part of your paper, or aspects of your arguments, it arises from.

Re: A Silly Critique of My DMCA Paper

Noel Le — Sun, 20 May 2007 15:23:56 -0000

Hahahaha. Hollar's paper is amateur psychobabble?!?! Tim, I want you to respond to this. Keep in mind that Hollar is a computer science professor, not your amateur peer-production fanatic who thinks he's a revolution, the kind of revolution you, Tim, constantly extol and want to change regulatory policy for at the expense of actual creators.

Re: On “Codifying Copyright’s Misuse Defense”

Noel Le — Tue, 22 May 2007 11:17:04 -0000

Thanks Tom. I'll look at this.

Some have pointed out that copyright misuse may limiit the reach of DMCA 1201, making it an important aspect of copyright policy if it were codified.

Re: Thoughts on Black Markets

Noel Le — Wed, 30 May 2007 15:09:29 -0000

Steve R, you seem to assume that what is omitted above is argued against. In that case, can you list some issues around consumer rights that should always be addressed when talking about copyright policy and enforcement.

Also, keep in mind that many digital goods are licensed, not bought in the sense that you *own* the goods. Many misconceptions of "consumer rights" arise from this distinction.

Re: Free Trade vs. the Copyright Lobby

Noel Le — Wed, 30 May 2007 16:16:57 -0000

Tim, I must say this is an odd post.

But even if you think those [patent and copyright policies] are good policy, they certainly don’t belong in trade negotiations. Trade negotiations should be focusing on trade barriers.

What? Trade barriers are only one aspect of terms of trade, and intellectual property has been on the agenda for trade agreements since Bretton Woods.

We free traders should be just as outraged about these demands as we would be if a Democratic administration demanded changes to other countries’ labor or environmental laws in exchange for a trade agreement.

I’m not sure who you consider a free traders, but I suspect your definition will change as you change your argument… “free traders” is, in other words, a meaningless term here.

Re: Free Trade vs. the Copyright Lobby

Noel Le — Wed, 30 May 2007 17:38:57 -0000

Thanks Doug, great link. Now can you look up the ensuing trade rounds, rather than the Bretton Woods charter.

Tim, you're basically saying that "free traders" are primarily interested in a narrow aspect of trade. Thats hardly flattering, it suggest that "free traders" either have narrow interests or don't understand the full-extent of trade negotiations.

Still, very clever setting up and definiing the term "free traders" so you could leverage the term "free" to criticize IPRs.

Re: Free Trade vs. the Copyright Lobby

Noel Le — Thu, 31 May 2007 10:55:57 -0000

Thanks Doug for debunking Tim's implicit argument that IPRs are somehow a new thing in trade negotiations. Still, that argument is better than his construction that "free traders" are only concerned with trade "barriers."

Re: Free Trade vs. the Copyright Lobby

Noel Le — Thu, 31 May 2007 10:58:14 -0000

...and Tim, can you explain how lax IPR policies do not constitute "trade barriers," in terms of deterring foreign investment.

Re: DeLong leaves PFF

Noel Le — Sat, 02 Jun 2007 00:42:32 -0000

Tim, you were never worth Jim's time. Period. Simple.

Re: DeLong leaves PFF

Noel Le — Sat, 02 Jun 2007 11:25:59 -0000

This post was basically a plea by Tim for somebody to read his paper. Hysterical... too funny.

I don't see any reason for a substantive reply to Tim's paper. I would not say it was awful, but it was not substantive. Analysis of the DMCA cases was done by check-list (if it does not repeal the DMCA, it stifles innovation), and the paper downright omits some DMCA cases (where there are not many to begin wth). If Tim is going to recite it over and over, I would update it.

Re: DeLong leaves PFF

Noel Le — Sat, 02 Jun 2007 14:05:47 -0000

Enigma, its obvious Tim has been trying to needle Jim to respond to him. Its called envy.

And why would JDeLong bother? I mean, haha, come on, seriously...

Re: Patents and Tacit Knowledge

Noel Le — Sun, 03 Jun 2007 14:32:26 -0000

Well, Tim, I gotta say this is a turn-around. One day, you write something I completely disagree with, and then you come back with something thats actually pretty good.

Check out these articles:

Lemley, Mark A. and Cohen, Julie E., "Patent Scope and Innovation in the Software Industry" . California Law Review, Vol. 89, p. 1, 2001.

Burk, Dan L. and Lemley, Mark A., "Designing Optimal Software Patents" . INTELLECTUAL PROPERTY RIGHTS IN FRONTIER INDUSTRIES: SOFTWARE AND BIOTECHNOLOGY, Robert Hahn, ed., 2005.

Lemley and others make several recommendations for patent policy, as it should govern software patents. Relevant items are a more stringent disclosure enforcement for software patent applications. Lemley did not call for lines of code being put into patent applications, but he makes strong arguments on how the USPTO shows little concern with the enablement doctrine due to lax enforcement of the disclosure doctrine. Another key argument by Lemley and others is that there should be a reverse engineering exception in patent doctrine, which is also tied to the USPTO's lax enforcement of the disclosure requirement.

I have to find this article by Robert Merges, in which he argues that the scope of enforcement for a patent should correlate with the extent of its disclosure. Can't recall the article offhand, since Merges has released a number of articles recently.

Having referred you to the argument above, I do take issue with this aspect of the post:

It’s pretty often... to see an argument that without patent protection, a small software company wouldn’t be able to negotiate on an equal footing with a large one, because the large one will simply listen to the smaller company’s pitch, take careful notes, and then steal the company’s idea without paying a penny.

You make two mistakes Tim: 1) confusing less leverage and no leverage, 2) not acknowing practices in the industry. For #1, lets try this: without patent protection, a small firm would have less leverage to negotiate with larger firms and would have to rely on trade secrets, which inherently do not invite collaboration and exchange between innovators. For #2, imagine that a small firm works with a larger one to commercialize an invention. The small firm provides a component part of an invention, the larger one wraps complementary technologies around it and manufactures. Without patent protection for the smaller firm, once the commercial invention is completed, the larger firm would not bother to pay licensing fees. They'd say, thanks sucka, but you don't have a patent on it. With patent protection, small firms hold leverage from the initial negotiation phase to the commercial phase.

Re: Patents and Tacit Knowledge

Noel Le — Mon, 04 Jun 2007 15:19:26 -0000

Chris, excellent point, but without a patent, how exactly do you define the smaller firm's contribution? There is little to prevent the larger firm from reworking the technology to the point where it can say its no longer using the smaller firm's contribution.

Re: Patents and Tacit Knowledge

Noel Le — Mon, 04 Jun 2007 16:46:31 -0000

Tim, again you use this logic where you only compare extremes: "If my point about tacit knowledge is true, the patent is completely superfluous." No, no, no...

If a small company says: "we won't help you adopt our technology unless you give us a contract agreeing to give us X percent of the revenues for X years" the larger company would be constrained in how it commercializes technology, since it could adopt a better solution yet still owe the small company royalties. This is terrible for the innovation process in a sector where firms must adapt and be flexible. Such a scenario, as you suggest Tim, would also probably curb entry of new firms, who can't just license their patents but must essentially go rent-seeking with unproven technology.

You make some good points in this post Tim- suggesting that licensing agreements can also be seen as collaboration agreements, but then you over-generalize, and arrive at a very bizarre scenario.

Re: File Sharing’s Funny Math

Noel Le — Thu, 07 Jun 2007 11:10:06 -0000

***“Mistrust-based” DRM could very well reduce the number of people who upload a given file to peer-to-peer networks. But unless you can reduce that number to zero, it’s not going to do any good.***

Here is your absolutist reasoning at work again Tim. It falls inline with how you argue that unless DRM or the DMCA stop *all* piracy, there is no point in them, and how you argue that unless patents have 100% correlation with innovation, that they are no good, and how you argue that if DMCA 1201 affects *any* reverse engineering that it stifles innovation.

A more nuanced approach would be to state that mistrust based DRM is valuable if it reduces piracy to levels where its economical for creators to invest in online distribution.

Re: File Sharing’s Funny Math

Noel Le — Thu, 07 Jun 2007 12:23:48 -0000

Doug, you adopt Tim's logic. Imitation really is the best form of flattery, but is it wise:)

Re: File Sharing’s Funny Math

Noel Le — Thu, 07 Jun 2007 13:04:16 -0000

Doug, please you're getting ahead of yourself.

You claim that there are no numbers between 0-100% (by claiming that DRM is not useful unless it entirely stops piracy), then argue I'm bad at math:)

But in any case, even if I did run around yelling 2+2=7, its better than ranting about some worthless revolution that never and will never happen.

Re: File Sharing’s Funny Math

Noel Le — Thu, 07 Jun 2007 15:40:03 -0000

DRM critics say it does not stop piracy, but then criticize law enforcement efforts in the name of a revolution. Basically, they're 1) making an argument, 2) trying to stop others from disproving the argument, 3) trying to generalize their cause. In some cases, DRM critics argue that peer-production obviates the need for professional creators to leverage DRM- an argument that seems intended to entirely moot steps 1, 2, 3 in case any of them are wrong.

Re: File Sharing’s Funny Math

Noel Le — Thu, 07 Jun 2007 18:30:16 -0000

Eric, Tim doesn't seem to consider DRM alongside the DMCA nor law enforcement, and consequently does not consider that piracy can be deterred even when it takes only one uploader to make a file ubiquitous.

I"m not sure why Tim does not consider DRM *and* the DMCA (or other copyright enforcement mechanisms), since neither alone is meant to deter piracy. They're supposed to work together. Rather Tim seems to focus on one at a time, such as here, and argues that DRM alone does not stop piracy.

Tim also analyzes one patent at a time and asks how it contributes to innovation rather than a dataset of patents, so I'm not surprised to see him take a similar approach with DRM.

Re: Patents and the Software Industry

Noel Le — Sun, 10 Jun 2007 13:22:55 -0000

Tim, it appears you're extending the patent debate to one between: 1) engineers v patent lawyers, 2) industry entrants v incumbents.

On engineers v patent lawyers, your argument is meaningless. As far as I know, every successful technology firm has good engineers and patent lawyers (or retains outside counsel). If a firm only has good engineers, its obviously new at the game of innovation, or just not very smart. In any case, this is an organizational- business management issue, and not reflective of the patent system.

Your point about small firms and industry incumbents is more meaningful, however you got it backwards- patents help small firms more than big firms, I'm not aware of evidence to the contrary. Smaller firms have few mechanisms outside of patents with which to level the playing field with larger firms. Patents are also essential to vertically decentralized business structures where a small firm can focus on a specialized space in innovation, and license its patent for integration into larger inventions.

You should also not consider the probability of infringement as a per se drawback of the patent system. Even if every invention has some probability of infringing on a patent, that makes licensing and collaboration deals more important in the sector. IP negotiations happen every day in the industry, its a common practice, everybody does it, nobody freaks out just because their invention may infringe on a patent.

Re: A Response to Greg Aharonian

Noel Le — Tue, 12 Jun 2007 14:54:25 -0000

***I have trouble putting much stock into studies that try to find a statistical correlation between software patents and innovation.***

Tim, so you just assume the tech sector is stifled, or impinges on various ideological measures of innovation? You want to say patents don't correlate with innovation, but you don't want to measure the correlation?

Thats fine if you approach patent policy from a natural rights rather from utilitarian perspective, which I believe you do. However, patent policy is informed by utilitarian concerns- no idiosyncratic ideologies.

So Tim, you admit your example of Verizon v Vonage is anecdotal. Uhhh, sense of perspective is important here. The market is not concerned about any single company, its concerned with the entire sector.

If Vonage closes down, one wonders if things would be different if it found work-arounds to Verizon's patents when it should have.

***It seems to me that a legal system that makes success in the marketplace a function of how smart your lawyers are, as opposed to how smart your engineers are***

Then the smart engineer is not really smart. Simple.

Re: What’s the Pro-Software-Patent Argument?

Noel Le — Tue, 12 Jun 2007 15:11:17 -0000

A consistent theme in Tim's writing is that he has a low threshhold for stifled innovation. One walks away thinking the technology sector will collapse tomorrow, but it makes sense when considering what Tim' actually sees as harmed: Tim implicitly argues that IPRs harm ideologies, thats why he sees significance in every molehill.

Tim might think 100 million dollars is a lot, but in fact its a cost of business in a sector where probably more than $1 trillion exchanges hands.

Tim is not really concerned with with the actual market. How on earth do you talk about barriers to entry and harm to new firms, without every talking about market entry? Oh I forgot, in the blog post right below this, Tim said he doesn't think its important to measure innovation.

Re: No Evidence?

Noel Le — Tue, 12 Jun 2007 15:14:37 -0000

***So those are two data points in support of the thesis that the software patent system is screwed up. Here are 26 more.***

Tim, why do you always link to your patent of the week series, where you develop your own standard of patent obviousness while decrying the rise in patent lawyers?

Re: Fun With Greg and Tim

Noel Le — Tue, 12 Jun 2007 15:19:12 -0000

***It seems like an "open source lawyering" arrangement could be set up. Lots of free software type people donate a bunch of money and hire a few lawyers to just go ahead and unilaterally challenge the worst of the worst software patents***

Brian, I actually proposed this for FOSS firms in case the KSR decision went the other way around.

Re: A Response to Greg Aharonian

Noel Le — Tue, 12 Jun 2007 16:05:06 -0000

Julian, to state it simply- Tim wants the freedom to tinker, he feels its a natural right. Nothing wrong with that, but its worth note when considering Tim's evidence against software patents. Evidently, he does not like economic evidence, but emphasizes situations where patents impinge on his natural right to tinker.

AK, check out one of my writings- Patent Licensing Markets Shape the Technology Industries. Google it on IPcentral...

Re: Fun With Greg and Tim

Noel Le — Tue, 12 Jun 2007 16:12:01 -0000

Actually Masnick, Kitch's prospect theory (which I think you unknowingly criticize in most of your patent writings) proposed the patents be obtained early in the *invention* stage to facilitate the development of complementary *and* incremental technologies.

As far as when patents are pertinent, in the invention v innovation stage, I'll hold off from commenting here. The relation between invention and innovation is a bit more complex than where this discussion may lead. Prof. Bronwyn Hall has done some excellent work in the area, which I'll review and write something on (Masnick, I'll even send you a copy).

Re: A Response to Greg Aharonian

Noel Le — Tue, 12 Jun 2007 16:14:16 -0000

Mr Sailor, thanks for the *nice* reply. Why don't you go read the article I posted (I don't want to put a link here, spam filter) and then say something to me.

Re: What’s the Pro-Software-Patent Argument?

Noel Le — Tue, 12 Jun 2007 16:22:15 -0000

Tim, for pro-software patents arguments, why don't you go to IPcentral and read some write-ups of Profs Merges, Lemley, Teece, Mann, Moser, Allison, Cockburn, Moore and others I've done. Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

Re: No Evidence?

Noel Le — Tue, 12 Jun 2007 16:24:26 -0000

Apologies for the double-post, I put this in the wrote blog.

...for pro-software patents arguments, go to IPcentral and read some write-ups of Profs Merges, Lemley, Teece, Mann, Moser, Allison, Cockburn, Moore and others I've done. Their datasets combined contain thousands of patents, and their analysis, even if you disagree, should be addressed rather than dismissed with a blind eye.

I like how Tim has turned more and more to ideological arguments in his string of patent posts today...

Re: No Evidence?

Noel Le — Tue, 12 Jun 2007 17:48:09 -0000

Oh, I forgot. Lee Hollar has done some excellent work on IPRs, he's a comp-sci prof.

Re: A Response to Greg Aharonian

Noel Le — Tue, 12 Jun 2007 19:31:31 -0000

You are right Don, Teece/Somaya make that point, and so far as I understand Teece/Somaya, in such a case they would propose that a firm either adopt an integrated development model, or leverage various forms of IPR clearance (patent pools, cross-licensing, etc). The Teece/Somaya paper addresses the former point based on its framework of how costs shape firm organization, and the latter point is explicitly addressed towards the end of the paper. I don't see the passage having the significance you may imply though.

Re: No Evidence?

Noel Le — Tue, 12 Jun 2007 20:59:46 -0000

Masnick, Tim asked for evidence supporting software patents and I pointed him in a direction where he could find some.

I can't believe Tim just wrote a blog dismissing economic evidence on innovation and patents. He'd rather give anecdotal evidence than look at empirical analysis, and would rather analyze one patent than a dataset of thousands of them. That’s fine if its Tim's approach, but it makes it odd to present generally accepted forms of evidence to him, as he won’t listen.

In any case Masnick, there are good arguments against software patents, notably one of the most talented scholars I'm aware of- but why should I tell you Masnick, I don't work for free:)

Re/ Moser. She has made several arguments supportive of what I see as valuable in the patent system: 1) patent facilitate the diffusion of innovation and knowledge exchange, 2) patents will draw innovation efforts towards industries where they are available. As far as Moser's *non-supportive* arguments, you have to remember that she is an empirical researcher. I would be surprised if Moser *did not* find negative effects of patents.

No academic I'm aware of, even those I cite most often as supportive of software patents, likes software patents unconditionally.

As far as Lemley is concerned, Masnick, I'm not sure why you thought I was arguing that he opposed an independent invention defense for patents. Why would I do this when *I* support a limited independent invention defense. Of Lemley, I wrote:

Lemley does not entirely downplay the potential value of an independent invention defense. In fact, he finds that such an addition to patent doctrine can be valuable to innovation in the technology industries, but reform must be approached cautiously in order to avoid debilitating effects.

Re: A Response to Greg Aharonian

Noel Le — Tue, 12 Jun 2007 23:57:06 -0000

Masnick, see research by Lee Branstetter and Keith Maskus on how IPRs have helped nations industrialize and form sophisticated economic sectors. Branstetter in particular has studied the effects of patents following nations' strengthening their IPR policies.

Of course, even if there is persuasive economic evidence against patents, Tim wouldn't buy into it. He would opt instead to look at one patent at a time and rely on anecdotal evidence to show how the patent system should fall to molehills. If you read his post above differently, let me know.

Re: What’s the Pro-Software-Patent Argument?

Noel Le — Wed, 13 Jun 2007 00:01:27 -0000

Enigma, you've read my work enough to know Ive reviewed at least 100 IP articles to support patents over the past year.

Tim's post gets more and more bizarre as you re-read it. For some reason, he wants Bill Gates to be an obstinant, rigid fool that can't change his mind over a span of 16 years. Gates is too smart though, he learned how to leverage patents for his firm. Free software firms on the other hand will never learn from their mistakes.

Re: What’s the Pro-Software-Patent Argument?

Noel Le — Wed, 13 Jun 2007 19:56:42 -0000

Jim, we discussed papers by Cockburn (and I believe Merges). I addressed your critiques where you pointed out excerpts of my writing, including a post where I said there is a "consensus" among academics rather than limiting the pool to the three I discussed in the blog. I returned your email, only to get no reply.

Many of the papers I"ve reviewed say more than this: "most are directed to showing that software patents have not yet harmed the software publishing industry."

Re: A Response to Greg Aharonian

Noel Le — Wed, 13 Jun 2007 19:58:52 -0000

Masnick, Branstetter will fall on both sides of the fence just like any other empirical researcher. I was not pointing him out *just* to show the case for patents, but somebody you should check out.

Re: Analog Rights Management

Noel Le — Thu, 05 Jul 2007 21:21:56 -0000

...on the other hand, will allowing circumvention of shopping cart locks further innovation, facillitate freedom, deter the market for circumvention devices, prevent another revolution in the Safeway parking lot:) And what side of the debate will Libertarians fall on if they hold four freedoms disproportionately to all other things in life like the Free Software Foundation?

Re: Analog Rights Management

Noel Le — Thu, 05 Jul 2007 22:09:35 -0000

Jim Harper, have you done more writing on how your views comport with the Epstein article. I see Epstein closer to JVDeLong...

Re: Two Cultures?

Noel Le — Fri, 06 Jul 2007 11:59:44 -0000

***Tim Lee, in particular, has been particularly vocal about his skepticism of patent law and practice. His patent of the week series provides pretty good examples.***

Yes, but Tim should ask himself whether his own standard of non-obviousness helps inform patent policy discourse. He should also ask himself why he criticizes the rise in patent lawyers who apply scientific backgrounds to patent policy- they're doing professionally what Tim does as an amateur.

Re: Eminent Domain, Software Patents, and Central Planning

Noel Le — Tue, 17 Jul 2007 21:42:26 -0000

***a software developer shouldn’t be required to conduct a patent search before writing a new piece of software.***

Thats funny, whenever an independent developer goes after a large firm, he's called a patent troll. Whenever a large firm goes after the small guy, he's called a bully. Sheeesshhh.

Re: Eminent Domain, Software Patents, and Central Planning

Noel Le — Wed, 18 Jul 2007 11:29:16 -0000

Don, I was critiquing Tim's positioning of the patent debate as a battle between independent inventors v big firms.

By the way, I"ve bought (real) property in planned communities. Yes, the benefits of living in a free market, socio-economic mobility, the ability to enjoy the pleasures of economic freedom.

Re: Eminent Domain, Software Patents, and Central Planning

Noel Le — Wed, 18 Jul 2007 14:34:44 -0000

MikeT, my excerpt was aimed at Tim's positioning of the software patent debate as David v Goliath. As Don pointed out, this was not Tim's main point, but I still see it as a constant theme he leverages.

I'd like Tim to explain whether the patent system has prevented any independent developers from entering a market in which they had some promising viability. My feelilng is that there are not many examples, and consequently little negative impact on innovating activity. Tim is, again, making mountains out of molehills.

Regarding the independent v politically entrenched battle Tim has introduced, well, thats life. Because we, in the US, are given some equality in the political process, many of us *expect* the same kind of equality in the creation of culture, influence on policy, and outcome of commercial activity- and those with more expectations are often the most disappointed by the reality that inquality of many sorts exists in a free market economy.

Re: Eminent Domain and Software Patents Again

Noel Le — Mon, 23 Jul 2007 07:44:16 -0000

After abusing the terms "monopoly" (for which Tim will use at least 5 meaning in one paragraph), "obviousness" (for which Tim has his own standard w/r/t patents, he'll simplify a patent claim and then declare his summary obvious), and "centralization" (can Tim just explain when and to what extent decentralization is beneficial, rather than touting it as an end-in-itself) the most mis-used term used by Tim is "analogy."

Re: Eminent Domain and Software Patents Again

Noel Le — Mon, 23 Jul 2007 07:57:32 -0000

***I don't care one whit about the thousands of companies around the world that own software patents. I devote the small measure of care to people. Companies, and the patent system, exist to produce things for people. If they are producing less than they should, I wouldn't hesitate a moment to change things so that they produce more.***

Jim Haper, thats a pretty strong statement. Is this a war on producers you're waging?

It will not help society to badger producers. Vote with your wallet, rather than hounding them with ideology.

Re: Eminent Domain and Software Patents Again

Noel Le — Tue, 24 Jul 2007 16:19:08 -0000

***Patents, in contrast, cast a cloud of uncertainty over a software product by giving dozens of different people the potential to sue you for patent infringement with no easy way to find them and no way to be sure if a given patent covers your product or not. It’s downright silly to equate the two.***

1) patent searches will help, and if you can't deal with some measure of uncertainty, innovation should not be your business (and neither should real estate investment for that matter:)

2) Tim, can you name instances where the patent system has deterred R&D;, or a start-up from entering a market?

3) its questionable to equate eminent domain and the patent system, so I'm not sure why Tim is calling Mark's argument silly when the whole basis of his post is oddball.

4) Tim's writings on patents suggest that the tech sector is hampered down, with little innovation and little investment in new activity. Hmmm, actually, that sounds like the FOSS market, the rest of the sector is doing fine- look at the stock market.

Re: Eminent Domain and Software Patents Again

Noel Le — Tue, 24 Jul 2007 21:07:59 -0000

Thats funny, after summarizing several dozen patent claims, and declaring those patents simple, Tim admits he's confused about their boundaries.

Lewis, I understood Tim to argue that uncertainty over property boundaries leads to uncertainty over market activity. A developer may be deterred from entering a market b/c he cannot ascertain whether or not he infringes on any patents, and thus is deterred from investing in commercialization activity.

I for one would support some kind independent invention defense for patents (as well as a limited reverse engineering and fair use defense), but the fact of the matter is that a developer should do a patent search at some point b/c such a doctrine does not exist in patent policy.

I believe we're getting muddled up in hypothetical problems with the patent system. Most developers will not do patent searches b/c they know patent holders don't have incentive to chase down all instances of possible infringement. Still, it would be responsible to do patent due diligence when development reaches the post-invention commercialization stage and seek out licensing arrangements with patent holders.

Re: Goblinright

Noel Le — Thu, 23 Aug 2007 10:22:45 -0000

***Calling the sale of software a “license” is little more than a word game.***

Tim, licensing vs selling software has ramifications for FOSS. Did you consider how your arguments reflect on the effort to standardize licenses to reduce transaction costs for FOSS, and the debate on capturing the spirit of the FOSS community in the GPL.

Re: The Poor, Beleaguered Patent Trolls

Noel Le — Thu, 03 Apr 2008 10:43:24 -0000

***I think you'd be a more effective advocate if you spent less time questioning peoples' motives and more time engaging peoples' actual arguments.***

Tim, please don't display such Texas sized sophistry:)

http://www.techliberation.com/archives/040774.php

Re: The Technology Liberation Front » Archive » More on the DataTreasury Patents

Noel Le — Thu, 03 Apr 2008 13:10:17 -0000

Tim, its how the USPTO and courts construe the patent, not you.

You can't just summarize a patent claim at the 100,000 level, take away from that an over-simplified understanding of the patent, and derive pessimistic visions for the future of innovation:)

I've pointed out that this is the basic formula of your patent of the week series.

Re: The Technology Liberation Front » Archive » More on the DataTreasury Patents

Noel Le — Thu, 03 Apr 2008 14:01:15 -0000

The USPTO and courts affect how a patent is enforced, apportionment of damages, etc. Tim does not, but writes of how the patent will be enforced and the ensuing effect on innovation as if he did.

***The problem with the USPTO and the courts is that they are generally NOT skilled practitioners and not in a position to judge properly if an idea is non-obvious.***

I agree with this and think that a major down-turn in the effectiveness of the patent system in recent years has resulted from adequacy at the patent office. However, the solution is not to have Tim host an amateur patent agent-psychic predictions hour on TLF.