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May 26, 2006

Patent harmony

In what seems to have been a shock to all concerned, the European Commission yesterday said last week that it would ban software patents in the EU in the upcoming community patent legislation – and would be binding upon the European Patent Office.

Some background. Everyone agrees that anything to do with patents in the EU is ridiculously expensive. Every EU country has its own national office that can grant patents, and every country has courts that can invalidate them.

There are so many weird anomalies in European patent law that it's unreal. For example, the whole mess is subject to the 1973 European Patent Convention. But the EPC isn't an EU treaty; it applies to the countries that have ratified it. Most of those are EU members, but not all. The European Patent Office (which is headquartered in Germany), on the other hand, while it was formed under the EPC isn't subject to EU control – it's not an EU institution. The national patent offices are subject to their national laws. Under the treaty, you don't need to apply to each separate country; instead, you can list the countries you want on your application to one office, and if the patent is granted it will be recognized in each place. Patents granted by the EPO are valid in all the EPC countries.

Any patent can still be ruled invalid by a court of law. But – and this is the really expensive part – action against a patent can currently only be taken at the national level. So the system is hugely unbalanced toward granting patents and keeping them valid: you can apply in one place to get a patent that, if awarded, will be valid everywhere in the EU, but you must bring an action in every single national court if you want it overturned. It is incredibly expensive and time-consuming, and probably by the time you'd gotten through all those national courts the patent would have expired anyway. But what's your other choice? Wait 20 years to pursue your idea?

On the other hand, if you're the small business with a great idea that competitors are trying to grab, it's just as expensive to defend yourself. Hence the comment a struggling inventor made to me a couple of years ago: "Patents are only as valuable as the money you've got to litigate to protect them."

OK. You're the EU and you want to compete with the US, which grants 18.75 patents per hour (2004 figures; that rate has undoubtedly gone up since then). You want – or ought to want – a patent system that inventors respect, that promotes progress, and that confers whatever economic benefits you believe patents confer. You therefore ought to want a system that rewards genuinely new inventions and discoveries while not rewarding bad ones. It needs to be efficient, inexpensive enough for small businesses to use (but not so cheap as to make it as easy for patent trolls as it is for spammers), and responsive. Bad patents should go quickly; they are detritus clogging up the system.

Obviously harmonization is important; in fact, it's been on the EU agenda since 2000, and about once every couple of years someone tells you, "I think it's really going to happen this time." But the announcement removes one of the biggest stumbling blocks.

The stumbling block for the last few years has been software patents. Germany, according to anti-software patent campaigners, tends to take the most robust view, declining to patent anything that doesn't have an effect on the physical world. The UK and the EPO, according to the same source, tend to be the most liberal (and US-like) about awarding patents on software. Even if that's not true (as the UK Patent Office has said), opponents of software patents remain deeply suspicious of any move toward harmonization; they remain convinced that software patents are the hidden agenda. The 2005 defeat of the European Computer-Implemented Inventions Directive, after all, was more because of an internal power struggle between the European Parliament and the European Commission (at least, according to Florian Mueller's book) than because of the substantial grass roots opposition. If the new law is forced upon the EPO, that could go a long way toward changing practice in the EU. The key will be in defining the appeals process, the route by which a European patent can be overturned. You want independent judges and a streamlined system.

A couple of weeks ago, I ran into an MEP who was active on the pro-software patent side of that struggle. The political will, he said, is not there now to get software patents through. But harmonizing European patents and making litigation cheaper to make the system more usable for small businesses are, very much so. Taking those off-the-cuff comments and yesterday's announcements together, it looks as if proponents of software patents are willing to sacrifice them, at least for now, in the interests of getting harmonization through. Software patents can – and I'm sure will – be revisited later, at which point they may be easier to legalize. I can't believe Microsoft, Nokia, and all those other large companies are just going to shrug their shoulders and give up. But that's a way off.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her | | Comments (1) | TrackBacks (0)

May 19, 2006

Toll roads

Ever since I read Robert W. McChesney's 1993 book, Telecommunications, Mass Media, and Democracy, I've been wondering if the Net could go the way radio did. As McChesney tells it, 1920s radio was dominated by non-profits, in part because no one believed anyone could ever be persuaded to advertise on the radio. The Telecommunications Act of 1934 changed radio into a commercial medium instead of the great democratizing, educational influence the pioneers expected.

Gigi Sohn, director of Public Knowledge, said unhappily at CFP, that legislative politics around network neutrality are breaking down into Republican versus Democrat. Even if you're a Republican and favor striking down Representative Ed Markey (D-MA)'s Network Neutrality Bill, it has to be bad news if vital decisions about the Internet's technical architecture are going to wind up a matter of partisan politics. If someone can really make the case that allowing, say, Verizon to charge Vonage extra for quality-of-service or faster data throughput would benefit Internet users, well, fair enough. But no one wins if these decisions boil down to politicians scoring points off each other. I'm sure this was always true in most subjects, but it seems particularly clear in the case of the Internet, whose origins are known and whose creators are still alive and working.

On the other hand, it doesn't help, as Danny Weitzner also said at CFP, that the arguments have become so emotional. TCP/IP creator Vint Cerf (now, like apparently half of everyone else on the planet, at Google), has called the telcos' proposals a desire to create a "toll road" in the middle of the Internet, rehetoric that seems to be propagating rapidly. To Net old-timers, that's fighting talk, like "modem tax". Red rag to bulls. Although it is becoming entertaining: rock musicians for network neutrality! And intriguing to see who is joining Save the Internet's coalition: Gun Owners of America and the Christian Coalition on the same list with the American Library Association and ACLU of Iowa.

The other key factor is that no one trusts the telcos (not that we should. Years ago, when I interviewed John Connolly, about his days at the National Science Foundation, where he signed many of the checks that financed the earliest Internet backbone; he talked about the many meetings he spent trying to get the telcos interested, but to no avail, since they couldn't see any way to make money from it. Now that they can, they want to come in and stomp all over it. Plus, there's the whole Verizon-blocking-everyone's-email as part of its anti-spam effort, and there's Comcast's history of blocking VPNs and other connections. And if that weren't enough there's the contention, voiced among others by Lawrence Lessig, that when the telcos were in charge technology stagnated for decades. Probably if they had their way the most innovative thing we could do even now would be to attach an answering machine to the end of their wire. And I'm old enough to remember a time when the telephone company would confiscate an extension cord if you installed one yourself and they found out about it. Will they be confiscating my Vosky next?

In their paper on the subject, Lessig and Tim Wu from the University of Virginia School of Law argue that what needs attention is not so much fair competition in infrastructure provision but fair competition at the application layer: access providers should not be allowed to favor one application over another, comparing it to the neutrality of the electrical network.

It seems to me that the argument for some kind of legally mandated network neutrality ought to follow logically from the earliest antitrust decisions under the Sherman Act: to ensure fair competition, content providers should not own or be able to control the channel of distribution. That logic required the movie studios to divest themselves of theater chains and Standard Oil to sell off its gas stations. Unfortunately, convergence makes that nuclear solution difficult. AOL sells online access and is owned by a major publisher that owns cable and satellite channels as well as magazines and movie studios. Comcast is the dominant cable broadband provider, and it provides (a relatively small amount of local) original TV programming. In the case of the telcos, their equivalent of "content" would be voice telephone calls. And if the analogy hadn't already broken down, the telcos' situation would kill it, because it would mean forcing them to choose between their traditional business (selling phone calls, a business whose revenues are vanishing) and their future business (selling the use of fat pipes and value-added services).

What no one is talking about – yet – is the international factor. It seems very unlikely that British or European telcos will be able to make the same kind of demands as AT&T, Qwest, and BellSouth. The only ones in a position to institute differential pricing and make it stick are the incumbents – and they would be heavily stomped on if they tried it. What would the Internet look like if there are "toll roads" in the US but network neutrality (in the best public service tradition of TV/radio broadcasting) everywhere else?

Wendy M. Grossman is author of (if NYU Press ever get it working again), From Anarchy to Power: the Net Comes of Age, and The Daily Telegraph A-Z Guide to the Internet. Her Web site also has an archive of all the earlier columns in this series.

May 12, 2006

Map quest

The other week, I drove through London with a musician friend who spent a lot of the trip telling me how much he loved his new dashboard-mounted GPS.

I could see his point. In my own folksinging days I averaged 50,000 miles a year across the US, and even with a box of maps in the back seat every day the moment invariably came when you discovered that the directions you'd been given were wrong, impenetrable, or missing. At that point one of two things would happen: either you would find the place after much trial and error and many wrong turns or you would get lost. Either way, you would arrive at the gig intemperate, irascible, and cranky, and they'd never hire you again. Me, that is. I'm sure you are sweet and kind and gentle and good and would never yell at someone you've just met for the first time that they miscounted and it's three traffic lights, not two.

By contrast, all my friend had to do was punch in the destination address, and after briefly communing with satellites the GPS directed us in a headmistressy English voice he called Agatha. Stuff like, "Turn left, 100 meters,"

Of course, I don't actually have any sense of how far 100 meters is. I lean more toward "Turn left opposite that gas station up there." But Agatha doesn't know from landmarks or the things humans see. I imagine that will change as the resolution, graphics, and network connections improve. I don't, for example, see why eventually everyone shouldn't be equipped with a complete set of world maps and a display that can be set to show a customizable level of detail (up to full, real-time video) with a recognition program that would enable Agatha to say exactly that while recalculating routes using up-to-the-minute information about traffic jams and other impedimenta. (Doubtless some public-spirited hacker will create a speed trap avoidance add-on.) Today's kids, in fact, are so used to reading multiple screens with multiple scrolls of information on them that the GPS will probably migrate to lower-windshield with user-selectable information overlays. And glasses, watches, or clothing so that if, like the Prisoner, someone abducted you from your London flat you would be able to identify Your Village's location.

Back in today's world, Agatha is also not terribly bright about traffic. We were driving from Kew to Crouch End, and she routed us through…through…Central London. A brief digression. Back in 1972, before the M25 was built, although long after the North Circular Road was cobbled together out of existing streets, I remember a British folk band telling me that that you had to allow an extra two hours any time you had to go through London. I accordingly regard driving inside the M25 with horror and an immediate desire to escape to a train. Yet Agatha was routing us down Marylebone Road.

You cannot tell me she knew it was Good Friday and that the streets would therefore be comparatively empty.

The received wisdom among people who know North London is that the most efficient way from K to C is to take the North Circular Road to Finchley (I think it was) and then do something complicated with London streets. On the way back, we tried a comparative test by turning off the GPS, getting directions to the NCR from the club organizer, and following the signs from there. (You would have to be as navigationally challenged as a blind woodpecker not to be able to find Kew from the NCR, and anyway I knew the way.) It was a quiet, peaceful way to drive and talk, without Agatha's constant interruptions. Or it would have been, except that my friend kept worrying whether we were on the right road, going the right way, speculating it was longer than the other way…

The problem is, of course, that GPS does not teach you geography, any more than the tube map does. Following the serial sequence of instructions never adds up to understanding how the pieces connect. Wherever you go, as the saying is, there you are.

To lament the loss of geographical understanding (to say nothing of the box of maps in the back seat) is, I suppose, not much different from lamenting that people other than Scrabble players can no longer do mental arithmetic because everyone has calculators or whining that no one has the mental capacity to recite The Odyssey any more. Technology changes, and we gladly hand over yet another task. Soon, knowing where Manhattan is in relation to Philadelphia or Finchley Road is in relation to Wembley will seem as quaint as knowing how to load an 8mm projector.

The world will look very different then: no one will ever be lost, since you will always be able to punch in a destination and recalculate. On the other hand, you'll never be really found, either, since pretty much all geography will be in offline storage. We folk travelers used to talk about how the whole country was our back yard. In the GPS world, your own back yard might as well be Minnesota.

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her | | Comments (0) | TrackBacks (0)

May 5, 2006

Computers, Freedom, and Privacy XVI

“Everyone seems depressed,” someone said a half-day into this year’s Computers, Freedom, and Privacy conference.

It’s true. Databases are everywhere this year. FEMA databases made of records from physicians, pharmacists, insurers. The databases we used to call the electoral rolls. Choicepoint. The National Health infrastructure they want to build. Real ID. RFID tracks and trails – coming soon to a database near you. And so on.

The only really positive moment is when Senator Leahy (Democrat – VT) bounds in to deliver a keynote, saying that the society we are creating is “a different US society than the one we know”. He ringingly denounces the claim that voting for the resolution to pursue Al-Qaida included voting for warrantless wiretapping, and everyone applauds.
Wait. CFP is being bucked up by a senator? Ten years ago, this conference thought it could code its way out of anything. PGP and Internet architecture could beat any lawmaker.

Now, someone says, “The governments are moving in in a big way” and there is a sense that the only hope lies in policy-making and persuasion. Privacy advocates are brainstorming legislative proposals. The Electronic Frontier Foundation is opening an office in DC.

Even the government types are depressed. Stewart Baker, who in 1994 baited this group by claiming that opposition to key escrow was coming only from those who couldn’t go to Woodstock because they had to finish their math homework, is now at the Department of Homeland Security, and tells us that in an emergency we should save ourselves.

Actually, that was one of the few moments of levity. What he did was ask how many libertarians were there in the room who believed that a government governs best that governs least. About ten percent of the crowd raised their hands (another major change from minus ten years, when at least half would have done so). How many actually had provisions of food and water for 72 hours? Most hands dropped. “Who,” Baker asked, “are you expecting to rescue you?” Gotcha.

The science fiction writer Vernor Vinge, who’s been wandering the conference to sample the zeitgeist preparatory to delivering his wrap-up late Friday, summed it up in an advance sample.

“The angle that’s somewhat discouraging,” he says, “is the sense I have in many of these issues that they do reflect an almost implacable advance and on many different fronts on the part of the government in support of the fundamental government idea that total information awareness (no trademark) is absolutely essential to the national interest. I see that as clearly and explicitly recognized by the government as essential to national security, so that in the long run opposing it is at best a matter of slowing its advance down and at worst giving it the appearance of slowing its advance down.”

Vinge was last at CFP in 1996, when he, Bruce Sterling, and Pat Cadigan all participated in a panel called “We Know Where You Will Live”. I remember it as one of the best CFP panels, ever. It was, to be sure, somewhat gloomy. I remember, for example, predictions that a supermarket might know what foods you had been eating from your sales records and, in cahoots with your medical insurer, order you off the potato chips and onto the celery sticks. But being able to imagine this dysfunctional future gave the sense that we would be able to avert it. And without, as one prominent CFPer has done since last year, moving to Canada.

This year, Katherine Albrecht, the leading campaigner against RFID tags and their prospective use to tag and track goods and people, presented her latest findings. Some of her scenarios are far-fetched enough to be truly lame (for example, the idea that someone could sit next to you in a plane and scan your bag so they could steal exactly what they wanted while you were in the lavatory) and others are too clearly chosen to try to manipulate emotional hot buttons (such as the idea that someone passing on the street could point a cellphone reader at a woman and be able to tell what model and color bra she was wearing; I mean, so what?). But the tracking, storing, and eventually sharing of data are all logical consequences of the infrastructure her research shows they are building. I’m not convinced we will go there. But the possibility is no longer outlandish enough for me to feel empowered by considering it any more.

“We haven’t,” a privacy activist now in the corporate sector said to me over dinner, “had one single success. It’s just a long list of failures.”

It is the health care situation that is particularly depressing. The UK has its flaws, but one benefit of nationalized health care is a real reduction in the number of people and organizations who are intensely interested in your medical records. In the US, it seems as though everyone is lining up hoping to get a glimpse of what might be wrong with you.

In one panel we learn that medical identity theft is one of the biggest and fastest growing problems. Now, I wouldn’t mind that so much if they’d take my ailments, too. Such as this growing sensation of being surrounded, spied upon, watched by cameras…

Wendy M. Grossman’s Web site has an extensive archive of her books, articles, and music, and an archive of all the earlier columns in this series. Readers are welcome to post here, at net.wars home, at her personal blog, or by email to netwars@skeptic.demon.co.uk (but please turn off HTML)