Thursday, December 20, 2007

The Necessity of Patents and Reform of Patent Laws

Patent law is something of a gigantic question for a lot of people. These people want to understand it. Most don't. But it's that kind of an attitude that really lends power to the people who want to take advantage of it. So let's begin by defining what I mean when I actually talk about a patent, and how it differs from copyright.

First of all, a patent is the idea that an invention was created by a specific individual or group. It differs from copyright in that patents are for things with practical applications. In fact, it wasn't until 1981 that the major problems of today with patent really started (though these are far from being the only problems), because of the software industry's insistence that a computer program is more than applied mathematics (which is, if you'll excuse the pun, patently untrue).

Computer software works by taking inputs (long strings of numbers), applying math to them (operations), and then creating outputs (more long strings of numbers). The electronic pulses that create a computer program are usually represented by ones and zeroes, representing "on" and "off" states of a computer's central processor. But in the end, all that switching and decision-tree-ing amounts to mathematical decision-making.

By allowing computer software to retain a patent, the Supreme Court has ultimately played a part in all of the abuse that consumers now enjoy because of the crossover between the three protections: copyright, patent, and trademark. The entire term "intellectual property" is actually a misnomer, because while it is created in the mind (by the intellect), there is no property until it has a practical application. In fact, the US PTO (Patent and Trademark Office) used to require a working prototype in order to receive a patent. Since that is no longer the case (since you can't really have a prototype for mathematical equations), patent is ultimately weakened. Making tougher laws to enforce patents has the inverse effect to the desired intent: it weakens all of the so-called "intellectual property" laws by linking to them.

Also, software is not a "practical" application. The word practical has in it the same roots as the word practice. By granting patents on software, we essentially grant a patent on a thought. You see, the word practical implies a practice which is action. Software is a virtual application; that is, it provides theoretical data the way that any complex mathematical function can. A computer monitor is little more than a graphing of those complex mathematical functions. However, graphing is action. Computation is action. The calculations themselves, which require a computer to operate, are non-action, and so should not be protected by patent. Copyright should be enough.

The word application in the software world is also potentially misleading: the connotation is that it is a practical application. However, the reality is that software only streamlines work and provides instructions based on mathematical formulae, rather than accomplishing any work itself. Before software was patented, mathematical equations could only be protected by copyright, and only then if they were published. The result is that there is a lot of confusion about the differences between copyright and patent. And now trademarks are starting to get blended.

In fact, the proponents of intellectual property laws often want the protections of all three of the different sets of laws on one production, rather than a good, strong protection of just one. That's because it ensures that they can control who makes the money and who doesn't. The problem is, in the process it kills the golden goose: people suddenly don't like patents or copyrighting or trademarking because it represents corporate greed and bullying. So they try to simply work without it, and refuse to have anything to do with the enforcement. In the process, they break the law simply trying to be consumers.

And also, since 1981, the practice of "shelving" patents has increased immensely. This practice is probably one of the most damaging that I can imagine. The reason behind shelving patents is simple: it buries competing technologies. For example, an idea for an engine that was entirely powered on water was devised in the 1930's, only to be rendered unusable by the powers in the government making money by keeping oil in the engines of the vehicles on our nation's roads at that time. The water engine worked, as it was demonstrated time and again. But it did not pass muster because of a patent system too weak to protect the individual who came up with it, and too strong to be countered for the right to build it at a later date.

And now anything can be patented. Life forms, business plans, and even book designs can be patented, because of the landmark decision by those in the Supreme Court which failed to take all of the future possibilities into account. The can of worms has been opened and it now seems that nothing can close it again. It creates the problem of non-viability within the patent system. Copyright is also in danger of becoming non-viable because of the way it's enforced. Trademark will follow suit.

Much of this has been speculated about (and special thanks to rms for this speculation, which I believe is spot on, though I'm still trying to gather proof for it) to have originated with the current people who want to lump copyrights, patents, and trademarks together under the heading of intellectual property in order to blend the protections offered by these three widely variant law structures so that all three apply to all creations at once. Organizations such as the WIPO (World Intellectual Property Organization) are puppets of the entertainment media industry, who bullies companies and even governments into acting on behalf of their own interests. Their corruptive influence needs to be at an end. It's time for reforms in the laws that allow this influence in order to reduce the power of patents and restore the balance, and it's time for a stronger separation of patents, trademarks, and copyright.

Though I support Senator Obama in his bid for the Presidency, I will say that I disagree on the idea that expanding our influence overseas is a wise idea. I further believe that patent reforms accomplished will not serve to strengthen patents, but to weaken them by making patenting an undesirable option. We are already witnessing this trend in the draconian world of copyrights.

Balance, in this and all cases of copyright and patent, is key to the survival and continued viability of the systems affected. The imbalance is in the manner in which these things are required by the laws in place today to be enforced. Many copyright and patent enforcers make the claim that their right is fundamental, and that stronger protection means increases in the law for the duration, protections, and requirements to enforce.

Another imbalance exists where there is a barrier to entry, and this is less of a major problem than shelving is, but it's still an enormous issue and one that essentially creates "haves" and "have nots" where patents are concerned. While there are plenty of US patents available at Google Patent Search, there are not patents yet available from other countries, and so enforcing international patents can become an issue, particularly where the WIPO agreements our government claims to adhere to. I say "claims to adhere to" because the language of these agreements is highly subjective in English, and seems to lack an understanding of how patents actually need to work.

Barriers to entry create a chasm between rich and poor. In a capitalist wealth distribution system, there are rich and poor, but there are also a great number of people between. This "middle class" is the foundation for the entire economic structure of capitalism, and while it feels great to be rich, not everyone can be. If there were no barriers to wealth, then everyone would have the same amount of everything, and there would be little incentive to improve: this is a communist economy with perfect wealth distribution. Likewise, if the barriers to wealth were at every turn, there would only be "rich" and "poor" and this would become an imperialist economy instead of a capitalist one.

Capitalism needs a balance between rich and poor. It needs there to be the ability for poor people to make it big, and the risk of the rich to lose everything. It needs the middle class in order to show that progress can be made between rags and riches. But with patents, there is no equivalent. There's the "rich" patent-owners, and the "poor" non-owners, with very little way to bridge the gap, because many kinds of patents required (until 1981 or soon after) a working prototype. And now the gap is one of researching patents and paying an attorney to do all of the legal legwork of filling out the papers. It shouldn't need an attorney; however, with the sheer amount of litigation and exploitative practices happening, not having a lawyer is a liability.

Today, the US PTO (Patent and Trademark Office) requires very little in the way of proof that something works before a patent is issued. If the idea looks "viable enough" and is based on "provable principles" then a patent can be granted if it doesn't step on any other patents. And investors can fill the gap between the "haves" and "have-nots" where patents are concerned. But they still won't patent things like sex toys or perpetual-motion machines.

But therein lies the problem: some of the patents that the world actually needs most do not themselves make any money whatsoever. And many that could make money and promote the progress of mankind are sitting on a shelf somewhere, unusable until the patent expires and is not renewed. But a lot of these ideas could enhance other money-making ideas, or in other ways benefit humanity.

Then there are medical patents. In order to build a life-saving apparatus in the spur of the moment, many times you must violate a patent by combining pieces. While this is not the best approach to medicine, it is occasionally necessary to innovate well outside the norms of practice.

Patents are an enormous problem. And like copyrights, balanced approach to patents are essential to the continuation of a free and open society. So what can we really do about all of this? It's a complex answer with several simple solutions.

One solution is to abolish patents altogether and amend the US Constitution. However, this essentially sidesteps the issue, which will remain in spite of the amendment to the contrary. Trying to enforce this will essentially lead us down a very dark path away from the ideals of democracy, so this is not really an acceptable solution.

Another solution is to let them have their way until the population is so sick of patents that they shy completely away from anything to do with patents whatsoever. Again, this solution leads us away from democracy, and is despotic in nature.

A third solution might be to simply ignore patents until the burden of litigation so completely overwhelms the courts that lawmakers are more or less forced to reduce patents. Again, this isn't a great solution, because lawmakers don't respond well to being forced into anything (nor do any of us, really). Lawmakers are human, too.

A fourth solution is to try to accomplish something similar to what has occurred with the Creative Commons and GPL licenses for patents, but again this isn't really as viable for patents as it is for copyright. There are certain ideas that these could work for, and certain things they would not work for.

As a fifth solution, we might also completely scrap the patent system in favor of a new one. Right. Like Congress would ever even give this thought serious consideration.

The sixth solution, and the one I personally favor, is to simply reform patent law back to its original state, sweeping all so-called "progress" in patent law away. Sweeping changes like this, I'll have to admit, aren't a fun thought for me. Rapid changes can destabilize things. However, sweeping changes like this could be accomplished with a minimum impact on stability in as little as 7 years. That's less than two presidential terms.

As you can see, there are quite a number of sides to this debate, and it's likely to continue for a very long time before anything gets done. While not as core to civil liberties as copyright, patent is still a very major issue and a balanced system is still tied to civil liberties.

Friday, December 14, 2007

Democracy and the Democrat

Barack Obama Logo

Let me make it clear, if it's not already: I am now a supporter for Barack Obama. More than that, I believe Obama when he says that he can accomplish change. There is not one candidate with a more clear track record in politics than Obama. Not Ron Paul, certainly not Clinton, and not even Edwards. We won't talk about Mitt Romney or Rudy Giuliani (under whose reign I was unfortunate enough to live while in New York City). The other candidates are almost not worth mentioning because I find their positions weak and their logic faulty.

Which brings me to Clinton. She is a "known quantity" which means that we all have seen her before. However, the problem with this is that she acts more like one of the "good old boys" than most of the boys do. While it would be nice to have a strong female president, Hillary Clinton is not it. And in spite of his past philandering, Bill obviously loves his wife very much, but even that isn't enough. The track record of secrets that follows that pair is a mile long. Secretive administrations are what we're trying to avoid for the future. Sorry, Hillary.

Edwards is one hell of a nice guy. However, the problem I have is that he has the appearance of a "yes man" to me.

I have two words for Mitt Romney: Olympic Scandal. We don't need that kind of baggage in the White House.

Ron Paul had my vote for a while, until I realized that he really doesn't understand what it is that he's doing. He's voted in favor of many things that he now claims to oppose. This is evidence of a lack of solid principles. Additionally, most of his supporters don't seem to be registered voters. I'm fairly sure that he's not going to be winning the primary elections... but you know, I do hear that Ralph Nader isn't running on the joint Green-Libertarian ticket this year. Maybe this is the year that a strong Libertarian might actually make it into the White House. But I don't think so. Ron Paul's method of eliminating the issues is to simply whisk them under the carpet of "deregulation" and to claim that he's a strong adherent to the Constitution. While I can agree that broad deregulation is needed in some areas, Rob Paul just goes too far for me to be able to take him seriously.

Rudy "Adolf" Giuliani did more things that made me think he was a fascist than any other politician I've had exposure to in history. In NYC, his streets were less dangerous because a police state is a safe state... so long as there aren't people in open revolt. Giuliani knew the fine balance that needed to be maintained, but that's not the government I want, nor the one our nation needs.

I don't party vote. I have declared myself "unaffiliated" both times this decade that I've voted. And I haven't voted for a presidential candidate since 1992. I was so disappointed with my choice in 1992 that I vowed I'd never vote for anyone until there was someone worth voting for. I said it would only take one person to bring me out and vote again.

And from what I can see, Obama's the one.

The more I study about Obama, the more impressed I am. This is not only rare in my personal life (studying people has shown me that most people are, at their core, hard-working and decent, but selfishly-motivated), it is unheard-of in politics. I'm not old enough to remember John F. Kennedy, and I barely remember Jimmy Carter. But what I do remember is that the people who supported them believed, but that belief diminished during office. Either that, or the person was assassinated.

I'm nearly positive that Obama is the kind of person we need in office, the kind of person whom everyone, once they learn about him, can support.

Barack Obama, we need you more than we need any other candidate. For them, it's business as usual. For me, it's personal. For Barack, "business as usual" means returning to the core values upon which this country stands. Our political stances are so similar that I can count the number of points we disagree about on my fingers. None of these points is so major that I can't support him.

And aside from this, the promise of negotiation at the table with those who would do nothing more than bicker and label me before, in order to arrive at a peaceful compromise, is too good to pass up. Even the chance at sitting across the table from them is something I've longed for since I very first became aware of the corrupting influence that they have. That is to say, the better part of a decade.

Barack Obama, I give you my solemn word: if you stick to your principles, and you are honest in your dealings, I will, in spite of your claim to not want a second term if you fail to meet certain goals, support you in another bid as president 4 years from now. The fact that you have tried means more to me than anything I could name, short of democracy itself.

Tuesday, December 4, 2007

The Core of Civil Liberties: Copyright

Enter our contest!

When our founding fathers wrote the Constitution, they recognized that the guarantee of the protecting the thoughts and ideas of citizens was important. While they ultimately felt that this protection was best addressed by the First Amendment, they did mandate that Congress should have the power to protect these ideas.

However, after years of argument and study, Benjamin Franklin and Thomas Jefferson were still at odds as to the duration of time. Thomas Jefferson, who had read every book ever published up to his time, implied that he was not in favor of either copyright or patents, though he conceded to Franklin that both were a good way of spurring action. The ultimate story shows that Franklin also concedes that a limited time is the only way that freedom could be preserved. Jefferson understood that the current battle over copyright is one that should have been avoided, because it ultimately detracts from the freedom of expression, speech, and creativity. The battle itself is a problem, but so is the extremism on both sides of the copyright argument.

On one side, are the pirates (see my previous post about the Pirate Party's Constitution). On the other, copyright enforcers who want to make copyright all-encompassing. The enforcers are too late. It's already all-encompassing.

But the real issue at stake is that copyright itself ties inherently into free speech, privacy, and even the way our Congress works. The biggest problem is that the lobbies have historically purchased the right to lobby officials. This corrupting influence leads politicians into a kind of forced march, and one that they often feel there is no real political way out of. The officials aren't corrupt, but the chink in their armor is that they are more worried about how people will perceive something than they are about doing what is right within the principles of democracy. These principles are immutable, and they are the purpose for the founding of our country. Though it would be a radical change to simply revert copyright law to its original state, it is the aim of many to take it even further and eradicate Copyright altogether with a Constitutional Amendment.

Nothing could be so huge of a mistake than to simply do away with these protections. Used responsibly, these protections are the main driving force behind our economy, our businesses, and our dominance of the world's inventive markets. Throughout the 1800's and well into the first half of the 1900's, there was an enormous gap between the United States and other countries. We helped them forge democracies of their own, but in large part the issue of control surfaced and has negated many portions of the democracies that we now claim to be in operation.

The issue of our copyrights in foreign lands is a large one for Congress, as well. The traditional standpoint of US foreign policy is to try to maintain good relations with everyone. But once again, there is a corrupting influence that has crept in over the decades and which has created the issue of trying to control foreign countries. This has stemmed from not only other countries trying to subvert our own, but also a reactionary tendency to jump into action any time there is a perceived threat, often before we even really understand the nature of that threat. As a prime example of this, the USA-PATRIOT Act essentially grants broad "emergency powers" to the President, powers which have become a bone of contention with many people.

However, most of the public doesn't really seem that interested about it, because it's intended for prosecuting terrorists, right? The problem with this is that it's never been used for that purpose. Its only purpose, according to a source in Congress (who is neither a Congressman nor a Senator) is to prosecute American citizens. In fact, it has been used increasingly to circumvent habeas corpus for not only prisoners of war, but also prisoners in the United States who are civilians.

And again, most don't care about this. Who cares about some drug-dealer? Who wants to even worry about fair treatment of some rapist or murderer? The issue at stake here is that if they can do it to one, they can justify it for all. We require sex offenders to register. How long will it be before we require everyone to report to the government where they're living and call it a crime not to inform them? How long will it be before election fraud is the excuse to put American citizens in jail for failure to report a change of address?

You see, people in power tend to love that power. The kind of power that comes from overseeing a large population is kind of like a drug. And that kind of power is exactly the kind of power that those who want to use the mandate of what is now copyright law in the Constitution in order to control Congress. Congresspeople become pawns because they have to retain favor. And with the media controlling government (and not the other way around, by any stretch of the imagination), they very much believe that the power to influence minds resides with the entertainment industry. After all, the entertainment industry even says so.

But there are an increasing number of people who are parting with the entertainment industry and who are instead stiking out on their own. They are legally distributing their work over the Internet for free, marketing their talents, and hoping that enough people decide to pay in order to send them on tour (where even more people will pay, so that they themselves can continue making music). They are protecting their own rights by parting with the powerful and wealthy entertainment industry.

The entertainment industry folks claim that they are also seeking to protect artists' rights. The biggest problem with this that I have is that this just isn't so. The massive bulk of the artists that I've spoken to who have anything to do with the entertainment industry have said flatly that there isn't a single shred of truth to that idea. What they're really interested in is control.

The current WGA strike is evidence of this within the MPAA organizations, such as television and movies, and even radio production. The RIAA organizations haven't suffered as much, but they are instead waging their own war, and they finally realize that they're on the unpopular side. But they're still unconvinced that it's the wrong side, because the only "right" thing to them is continuing their livelihoods by screwing artists out of the right to perform their own works, fleecing Congress, and litigating against an otherwise-law-abiding public. They want to control what people see, hear, and (by proxy) think. This is a danger to democracy.

The issue of copyright comes down to the very core of democracy: the right to freely think. Protecting this right is important, but even more important is the balancing act needed to ensure that it remains viable. We should get back to the arguments of Jefferson and Franklin, and we will see the wisdom of a fourteen-year term as opposed to the life-plus-seventy-years that artists currently have. Protecting something as vital to national interests as democracy means doing things that may be unpopular, but it also means adhering to the principles upon which democracy was founded. There can be no mistake about the importance of this argument, as it is the basis for all of the other rights which our citizens enjoy.

A world dominated by copyright law until we are no longer allowed to enjoy it is not a world I want to live in. It's a broad world we live in, and one which should enjoy that breadth in full. While I agree that attribution should remain intact perpetually, I don't think that creative derivative works should be considered infringement. I also don't think that Sonny Bono's music from 1974 is great enough to warrant litigation against some teenager who decides to download it and check it out (and probably won't really want it anyway). And who remembers Martika (one of my favorite artists... most don't until I talk about her hit called "Toy Soldiers")? I don't think her music from 1988 really warrants litigation if I'm singing it at the top of my lungs as I walk down the street (off-key, I might add, since I have a vocal injury from high school that prevents some kinds of vocal control). However, litigating against me does serve to tell me who thinks that they're firmly in control.

Thankfully, "Happy Birthday" (a derivative creative work) is copyrighted, but enforced responsibly. There isn't a legal team from ASCAP or RIAA at every birthday party demanding that people pay. No team of lawyers is aiming a boom microphone into back-yard barbecues, because there isn't a single person who would stand for the infringement of privacy that this would entail. But we tolerate people aiming software into our computers to spy on its contents. We wouldn't tolerate it if a lawyer handed out lyric sheets for the "Happy Birthday" song from an ice cream truck and then tried to sue people for taking them, yet we tolerate organizations who would set up a server to download from, and then sue people for downloading. We wouldn't tolerate lawyers going through our mail in order to learn who lives at a residence, but we tolerate an end-run around due process with ex parte discovery orders (and which essentially accomplishes the same task).

The "copyright regime" doesn't really operate in a capacity that I would call either fair or ethical, nor do they seem to want to practice equitably. They do seem to want to make copyright the be-all and end-all of cultural free expression. And they're killing culture with it. Copyright litigation is killing free expression. It's doing irreparable harm to democracy in our country. And it's stinking up our global neighborhood.

It's time we firmly stanced ourselves against both the "copyright regime" folks and those who want to abolish copyright. We need to get back to rationality, and to allow the fair use of copyrighted materials again. We must do this, or the entire basis for civil liberties in this country is in jeopardy. Copyright is so important to democracy that we should be willing to act.

This is why I've decided to join the Pirate Party. By being rational and truthful, we have more to gain than by deceptive practices (as the MPAA and RIAA have done). By and large, the Pirate Party has become the voice of reason, and one that it seems as though one presidential candidate has at least partly picked up on. However, this particular candidate doesn't seem to realize that expanding upon copyright is a mistake, and will cost us not only here at home, but also abroad.

I'm fairly certain that this particular candidate stands a good chance at being president, whether he addresses the copyright issue or not. However, I cannot in good conscience vote for anyone I don't believe in. That write-in vote for "Abstain" is looking kind of good right about now.

I just hope things change before they become too late.