[2:15pm] elarson: xmlhacker: you should patent the use of capital letters in association with the ‘:D’ emoticon during communication in order to protect your communications intellectual property ;-)
The above quote comes from Eric Larson in a recent IRC conversation after his recent post on “Patent Reform” ensued a conversation related to the 1-Click ordeal from 7 years ago (I was working on the Microsoft Passport team at the time, so those aware of that overall situation will understand what I mean when I say I had a first hand look at just how much fun dealing with the ugliness of the patent system truly is.) Those of you who have ever exchanged an email with me or have been a recipient of an email from one of the mailing lists I have posted to might recognize what Eric is referring to. For those who have not, at the bottom of all of my email communications you will find the following at the beginning of my signature,
/M:D
… which is intended to represent my first and middle initial, my first initial being implicitly bound to xmlns:M=”urn:publicid:Peterson:Patronymic+Surname:EN:1.2″ (<- If you don’t get it, don’t bother asking. It’s not all that clever *OR* funny ;-)) using an XML-ish namespace extension-based syntax.
Of course to those of you who have emoticons turned on in your email reader the above will translate to,
/M(BIG SMILEY FACE)
With the above in mind, and with the latest kerfuffle regarding Amazon “sneaking” one past the patent system by changing a few letters in their 1-Click patent application I’m now wondering if Eric might not be right? I mean, one *does* have to protect one’s intellectual property, right? ;-) And when you add this sweet little nugget of info,
How many copyright violations does an average user commit in a single day? John Tehranian, a law professor at the University of Utah, calculates in a new paper that he rings up $12.45 million in liability (PDF) over the course of an average day. The gap between what the law allows and what social norms permit is so great now that “we are, technically speaking, a nation of infringers.”
… you can probably see my point: With as many potential patent and copyright infringments that exist between text messaging and IM alone[1] I think it’s about time I tell this software writing gig to *KICK ROCKZ, SUCKA! I’m goin’4 the MUTHA’ LOAD!*, don’t ya think?
PLEASE NOTE: For those of you who might read this and wonder “Is he kidding?”, *YES*, I most certainly am. Then again, as sad as it might sound, while I’m certainly not in a position in which some patent troll or large corporation with a bee in its bonnet might consider coming after me for my use of /M:D, as per the [don’t click the link that follows if you are easily offended] “We Invented XML! And Now Everyone Owes Us Money Who Uses It!” extravaganza from a few years back, who honestly knows what could happen?
Don’t worry: That’s not a statement suggesting I really should consider it, but I can’t really blame companies like Amazon for seeking after patents for things that seem obvious due to the fact that it’s the obvious patents that enable protection from the not so obvious patent claims.
Let me explain,
In the world of corporate patents where people are suing you for alleged patent infringement because of the difference between a single word and/or phrase, you can’t really hold Amazon or any other mega-corporation accountable for building up their portfolio’s,
Patent portfolios are the best defense against patent infringement lawsuits. Many times there are overlapping patents or very similar patents on any technology. When a big company is sued the first thing they do is look at their own patent portfolio for a similar patent so they can counter sue. This usually leads to a reasonable out of court settlement. Patents become poker chips in a high stakes game of legal lunacy. Don’t you just love lawyers?
From the outside looking in, the above Amazon patent might seem like a complete atrocity. And then you read a post such as Tim Bray’s IBM vs. Amazon,
The Internet has been amazingly quiet about IBM’s litigation against Amazon. It feels to me like maybe the biggest Internet story of, well, maybe, ever. I haven’t gone and read the IBM patents yet, because reading patents always depresses me. If the titles mean anything (not always a sure bet), this might mean that IBM has finally managed to figure out how to set up that Internet Tollbooth that we’ve always been afraid of. If you’re interested in “Presenting Applications in an Interactive Service”, “Storing Data in an Interactive Network”, “Presenting Advertising in an Interactive Service”, “Adjusting Hypertext Links with Weighted User Goals and Activities”, or “Ordering Items Using an Electronic Catalogue”, apparently IBM thinks you need to pay them for the right to do any of those things. If the courts agree with them, it’s time for me to find a new line of work. [Update: David Berlind is the first journalist to get off the mark and start spelling out the implications. The Internet as we know it could be over.]
… and realize this is just a *BIG PHAT UGLY* game, a game in which the only real protection is similar to that of Zack de la Roca’s reasoning for signing with a major label,
(Paraphrase) The only way to beat the machine is to become a part of the machine.
from “Maximum Rage: The Unauthorised Biography Of Rage Against The Machine” Track 2: Chicano Child, Narrated by Louise Weekley
In fact, via Tim O’Reilly’s now infamous series of posts related to the original 1-Click kerfuffle (which converges to form Tim’s and Jeff Bezos’ “Call for Patent Reform” a few days later),
Amazon started patenting because they realized that they would be under attack by players who might well one day be able to put them out of business.
Jeff tried to reframe the problem from Amazon’s point of view, and the analogy he used was arresting: “We don’t want to be another Netscape.”
Jeff: While we may be large for an internet company, we’re small in the retailing world. WalMart is 70 times the size of amazon.com, and there is no reason to believe they are hesitant to use their market power. B&N isn’t doing any innovation at all on the Web–all they do is copy Amazon feature for feature, sometimes down to the exact wording. Is that right? he asked.
How would you feel if Amazon ended up being acquired by WalMart as Netscape was acquired by AOL? Don’t you wonder what might have happened if Netscape had filed a few patents?
Amazon isn’t the bully here. In fact, we are standing up to a bully. These are companies that have been extremely aggressive in stamping out competition in the bricks and mortar world, and they are bringing their entire arsenal to bear on Amazon.
… which nicely summarizes the purpose of the second half of this posts’ title,
Why It May Not Be Such A Bad Idea
… cuz’ even with the recent surge of change coming from the House of Representatives and even from the Patent Office itself, the threat of lawsuits related to patent infringement for existing patents hasn’t changed, so while it may make the patent process that much more difficult for future patent trolls it certainly doesn’t change the existing landscape all that much (though that *could* change over time if the court system continues to find sane ways to deal with frivolous patent-related lawsuits), and it’s in this regard I can’t really blame Amazon or *ANY* other legitimate patent holder for doing all they can to protect themselves from the unscrupulous predatory practices of those willing to seek whatever ways they can to pad their bank accounts or put existing or potential competition out of business.
Let me put this another way: I trust Amazon to continue to do the right thing. But I don’t trust that those willing to seek whatever means possible to put the competition out of business and/or in other forms generate revenue from the difference between one word and one phrase on a patent will suddenly stop looking for unscrupulous ways to seek out what they’re after. Do you?
Just something to think about.
Happy Thanksgiving, everyone!
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[1] Not to mention email, but there are *MUCH* fewer text messaging and IM client providers than there are email providers, and every good patent loving troll on the planet knows that the way to *BIG BUCKZ’* is through the facilitators, not the infringers themselves (thouh it seems RIAA believes otherwise, but that’s whole ‘notha “raping the legal system” post for whole ‘notha “getting raped by the legal system” day. ;-)
