Subject: Re: Patents (was Re: DiBona, Allman, Tiemann, O'Reilly, Perens interview)
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Tue, 1 Feb 2000 11:19:55 +0900 (JST)

>>>>> "kms" == Karsten M Self <kmself@ix.netcom.com> writes:

    kms> Until you can show me that there is a downside to having
    kms> one's name associated with bad patent submissions (and AFAIK
    kms> examiners' names are not attached to patents cleared by
    kms> them), I'll stick to my position on this one.  Incentives in
    kms> this case are much more likely to be set within the bowels of
    kms> Congress and the executive branch, not at the examiner's
    kms> desk.

C'mon, Karsten, if the economist rms loves to hate[1] tells you that
people care about more than money and promotion, don't you think you
ought to listen?

:-)

Of course they recognize the incentives, which are ugly, as Mark
Shewmaker points out.

But they would rather do a good job than not, and by now they are
aware that they are doing an abysmally poor one.  True, patent lawyers
make a lot more money than patent examiners, but I'll bet that one
reason for the high attrition rate among examiners is the feeling that
if you're going to foist shitty patents on the public, it's better to
accept money from the beneficiaries than from the victims.

    kms> My reading, again, is that this is not injunctive relief for
    kms> the alleged infringed party, but essentially a bit of
    kms> legalized blackmail -- take this down and you're not liable
    kms> for any potential damages -- which violates due process.  The

Of course it doesn't violate due process, as I understand it (IANAL,
of course).  What is says is that until the CC (eg ISP) takes a
conscious act infringing on the IP, it is not liable for damages, and
that the ISP can basically establish innocence by removing access.

That is, it expedites due process in favor of the ISP.  You can still
sue the ISP for damages, but you have to prove foreknowledge and
things like that.  This actually works in favor of free speech in one
way:  ISPs have a strong incentive to avoid documented knowledge of
what their customers are doing.

This makes a lot of sense given that many of the cases we're talking
about there is no way to recover damages from the real perpetrator.
Eg, a recent investigation of the undergraduate home pages in my
department showed that _every single one that contained anything of
interest (all our students automatically get an "under construction"
page, and we provide a sample page which a few simply fill in the
blanks and post) infringed copyrights_.  You really think you're going
to recover damages from undergrads posting images of Mickey Mouse and
MP3s of Speed (a currently popular "girl's pop" group, fortunately now
disbanded; people posting MP3s of their "work" should be arrested for
environmental pollution, but I digress...)?

Not quite!  But Shere Khan, my lawyer, is licking his chops at the
idea of suing the University, the SINET, and the telcos....

    kms> removal is on notification -- "claimed to be infringing" --
    kms> without any requirement of proof.  Bad juju.

Could be bad juju, but lawyers don't think that way.  I'm currently
involved in a case where I got ripped off by my agent I appointed to
take care of my affairs while I was out of the country.  My lawyer
told me it would be "unethical" to threaten (ie, mention I was
considering) criminal charges before filing them.  However, once the
investigator indicated he would recommend prosecution, my lawyer's
_first_ suggestion was to contact my ex-agent's lawyer and mention
that a quick and full settlement would be reciprocated by me asking
that the charges be withdrawn or whatever.

I don't see an ethical difference, really.  Do you?  It's equally
"blackmail" either way.  I don't have a problem with it, I don't
consider it blackmail.  I consider it "win-win" negotiation.

What I do see is that this alleged ethical difference is precisely
analogous to the distinction that the quote from the DCMA (?) is based
on.

I don't see anything wrong with providing relief from liability for a
common carrier.  It should be balanced by an obligation to the
contractee, including explicit provision for punitive damages from
spineless ISPs.  Or maybe better, there should be an explicit
across-the-board exemption for common carriers from such liability
(just like you can't sue the ionosphere for carrying infringing radio
waves, you shouldn't be able to sue AT&T for sending and receiving
them if AT&T didn't choose the content).

    kms> Again, the subject is copyright, not patent law, but we've
    kms> now got legislative precedent for a cease-and-desist without
    kms> proof of infringement or court mandate (injunction), based on
    kms> unsubstantiated IP claims.

That it is copyright is crucial, though.  C'mon, Karsten, it is
trivial to establish copyright in most cases---people scan it and post
it, or cut and paste verbatim.  And real damages are done, relative to
perfect enforcement of the legally granted rights.  These damages are
in aggregate quite large.

Arguing that these rights shouldn't be created in the first place is
perfectly valid.  But if you accept the rights, even just for the sake
of argument, then the implication is that enforcement policy has to
balance between the rights of the IP holders and the rights of the
accused, especially those who happen to be innocent (under the law,
those are rather few, though---it's just not worth prosecuting them).
This is a strong argument for abolishing or restricting the rights,
IMO.  But that's a different question.

    kms> How about, say, and E-brokerage house defending its market
    kms> turf against other comers.  Leaving IBM alone, but picking on
    kms> smaller targets.

    >> The other comers are going to be Morgan Stanley Dean Witter,
    >> Merrill Lynch, et al.  "Small"?

    kms> I had in mind the other e-brokerages.  New kids on the block.
    kms> Not a lot of capital or much of a patent portfolio yet.  The
    kms> first of these to emerge with a blocking business-methods
    kms> patent could squat on all the others.

Which makes those others run for cover under the wings of Mother
Merrill.  Their technology is worth a lot more in the hands of a firm
with a good big legal department than it is in the hands of a bunch of
"IANAL and proud of it" nerds.  This is precisely what we mean by a
bias in favor of big firms.

    >> It's possible that we can educate those F 500 firms, of course.
    >> But I don't think their natural tendency is going to be to blow
    >> away IP protections, since most of them have legal departments
    >> with vested interests in that.

    kms> I sense a circle here -- isn't this pretty much how I opened
    kms> this discussion?

Yes.  But the balance of considerations is very important to strategy.


Footnotes: 
[1]  rms doesn't hate me AFAIK; the line scans better this way,
poetic license.

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