May I Nominate Mary Bono For “Jackass Of The Week”?
Daring Fireball has an occasional feature called “Jackass Of The Week” that highlights exceptionally stupid or misleading public statements made about Apple. Lately it seems like “analyst” Rob Enderle has established a lifetime lock on the award, but on the off chance it’s still in play, I’d like to nominate Rep. Mary Bono (R, CA) based on “her rhetorical questions to Tim Berners-Lee (!) at a Congressional hearing yesterday”:http://www.macworld.com/news/2007/03/01/bernerslee/index.php :
Bono questioned if [removing DRM] would prevent mass stealing of copyright materials. “Is that not the equivalent of having a speed limit but not enforcing the speed limit?” she asked.
We do have a speed limit that’s not generally enforced. How often do you see a Highway Patrol car? How often do you see someone get pulled over? Based on my commute, my answers are “maybe once a week” and “maybe once a month”. And yet the highways of Silicon Valley have not devolved into “Mad Max” or “Death Race 2000”. Most people speed a little bit (don’t tell anyone, but I usually drive 70 instead of 65, and sometimes I kick it up to 73 when Underworld or Led Zeppelin come up on my iPod.)
Some people drive much too fast, or recklessly, and cause accidents. But putting enough police cars on the road to arrest everyone driving over 65 would be hideously expensive and cause chaos; while installing tamper-proof governors on all engines to enforce speed limits is the kind of silliness used only in satirical SF stories.
But it gets better!
Bono said strong protections for digital content are needed. “With great respect to Steve Jobs, he’s trying to sell hardware, first and foremost,” she said. “I wonder if he would feel the same way about his patents being on the Internet free of patent protection.”
Earth to Ms. Bono: Apple’s patents are available free on the Internet. The Federal government requires that they be made available. Like this one [PDF] covering the user interface of the iPod. Anyone can read these patents. Anyone can use them to figure out the workings of a patented device, and use them as the basis of their own research on improved devices, and even patent and sell their own sufficiently-novel improvements. That is the whole point of patent law: to keep inventors from hiding their ideas, and to encourage creativity and innovation by letting inventors freely build on the ideas of other inventors. Doesn’t that sound nice?
Speaking of patents, Ms. Bono…
Let’s compare & contrast what patents provide:
- Limited term of monopoly (is it still 17 years?)
- Guaranteed public access to the details of the invention
- Inventors are free to reverse-engineer, examine, and improve on the invention
- Inventors who come up with sufficiently novel improvements can freely patent them and sell products based on them, without obligation to the original patent holder
…with the mess copyrights are in:
- Effectively infinite term of monopoly (currently about 90 years, and Congress has made it clear that it will be extended whenever necessary to, literally, prevent Mickey Mouse’s early works from falling into the public domain.)
- Copyright holders are allowed and encouraged by the DMCA to prevent public access by means of copy-protection
- The DMCA explicitly makes reverse-engineering of copy-protection a crime.
- Copyright law requires permission to make a subsequent so-called “derivative work” that’s based in any way on any piece of the original.
Mary Bono is, of course, better known as the widow of Rep. Sonny Bono (R-CA), who was himself known for such innovations as “I Got You, Babe” and his later legislative efforts (unrelated, I’m sure) to extend copyright terms to infinity-on-the-installment-plan. As the current copyright holder of that 40-year-old song, she benefits financially whenever it’s played on the radio, used in a commercial, bought on a CD, downloaded from iTunes, shown in a movie like “Groundhog Day”, played on the muzak at an Old Navy store, covered “ironically” by a punk band, sold as sheet music to a beginning pianist, …
Reducto ad absurdum
Let’s imagine if this state of affairs applied to a 40-year-old patented invention. I’m lazy so I’m going to make one up: let’s say that Burroughs had patented virtual memory in 1966. (This is untrue. You couldn’t even patent software algorithms back then. But work with me on this.)
This temporary monopoly might have been enough to pull Burroughs ahead, out of its distant-second position relative to IBM, as time progressed and demands on computer power and memory increased. Burroughs’ computers would have been more desirable, and other vendors like IBM and DEC would have had to pay hefty licensing fees to Burroughs to use VM in their own operating systems.
…but this would have come to an end in 1983, just in time for the rapidly evolving personal computers to start freely making use of virtual memory (actually it took until about 1990 for both Windows and the Mac OS to introduce it.) So let’s imagine that, thanks to the (fictitious) tireless legislative efforts of former Burroughs computer scientists turned Congressmen, patent law were like copyright law. (In fact this would make it a lot like trade-secret law, as far as I can tell.)
So where would we be today? Burroughs would still have monopoly ownership of the concept of virtual memory. It would likely be a major player in the computer industry to this day, especially since any other manufacturer who wanted to use VM would have to pay Burroughs a royalty. (Or Burroughs might have shriveled up into a patent troll, a parasite existing on the royalty payments from real computer companies.) This would naturally increase the cost of computers. No open source project, like Linux or BSD, would be able to use virtual memory, since there’d be no moneyed entity to pay the royalties.
Even more interesting: the algorithms behind virtual memory would be a black art. Reverse engineering a Burroughs or Burroughs-licensed VM subsystem would be illegal. Virtual memory couldn’t be described in textbooks or taught in university classes. No one could research virtual memory, or describe or implement improved versions of it, without permission from Burroughs.
(This probably means that virtual memory wouldn’t be nearly as advanced as it is in the real world, where most of its implementations have been freely inspectable and modifiable since the early days of Berkeley Unix in the ‘70s. It’s a simple idea, but implementations become rather complex in search of greater efficiency, and there are all kinds of interesting extensions like compressed backing stores (a la RAMDoubler) and memory-mapped files.)
There might be underground hacks that patched feeble microcomputer OSs to add virtual memory support. These hacks would have to be disseminated through pirate channels, and Burroughs’ lawyers would be busy sending cease-and-desist letters to anyone publishing or distributing such software or allowing it to be stored on their servers. They’d probably even start going after ordinary computer users who downloaded the virtual-memory software and installed it on their computers.
Does this ugly scenario sound familiar?
March 3rd, 2007 at 11:34 AM
Gareth — “Apple’s patents are, effectively, DRM on their own technology and interfaces, which stops other people from using them as they may wish.”
No, they are not. The crux of my argument here is the difference between law enforcement and prior restraint. DRM is prior restraint. You ask “how would Steve Jobs feel if … anyone could launch a competing product with technology / interfaces designed, developed and created by Apple?” The answer is that _they can_, and they have, and Apple has sued them for patent infringement. And whether Apple wins (various iPod knockoffs) or loses (the Mac GUI), the final decision was made by human beings considering the evidence.
As I said, this gives other companies the right to make fair use of Apple’s innovative ideas, to examine them and build their own new ideas on top of them. And after a reasonable time, Apple loses its monopoly on using these ideas and they fall into the public domain. None of this is true of copyright under the DMCA, the Sony Bono Endless Copyright Extension Act, etc.
March 3rd, 2007 at 11:45 AM
Rick Curran — Your comparison with Free Will is right-on. One of the lessons of 20th century politics (Stalinism, Nazism, McCarthyism) and literature (“1984”, “A Clockwork Orange”, “With Folded Hands”) is that, _beyond certain limits_, a society that acts to remove the very ability for its citizens to do wrong becomes totalitarian.
The goal of DRM, in particular, is to encapsulate the very subtle and fluid legal notions of “intellectual property” and “fair use” into algorithms. This is an attempt at legal AI, and it’s not any smarter than any other AI we’ve created. Subtlety and fairness is replaced by simple black-and-white rules, and in all edge cases the decisions are made in the favor of those who own the DRM.
March 3rd, 2007 at 1:06 PM
“What she means is how would Steve Jobs feel if he didn’t have any patent protection, and anyone could launch a competing product with technology / interfaces designed, developed and created by Apple (and for which Apple would not receive any income).”
Really? For the sponsor of the copyright extension bill, and a member of Congress who is considered influential and worthy of citiation on issues of intellectual property, she doesn’t really seem too clear on the law. If you’re having to parse what Mary Bono means from what she says, then no wonder we’ve got the current mess.
It’s as if she’s just trotting out talking points fed by the big media lobbies without knowing what she’s saying. Funny, that.
That’s why it’s important to be hard on people like Mary Bono; she’s not some random music widow, but a member of Congress who takes the lead in making copyright law.
March 3rd, 2007 at 1:49 PM
One would just hope that there is no such thing as intelligent extraterrestrial life-forms that would come down to Earth and slap us all with a interplanetary patent legislation that would make us all pay them royalties over stuff they already invented a long time ago.
March 3rd, 2007 at 6:01 PM
Ferranti might have had an issue with Burroughs claiming the patent for VM, IIRC.
March 4th, 2007 at 12:19 AM
F.C. — Great scenario. “The patents for the wheel, movable type, and Pop-Tarts are all on file at the local patent office on Alpha Centauri. It’s not our fault if you won’t do some due diligence before releasing your own knockoffs of them.” (With apologies to Douglas Adams)
March 4th, 2007 at 1:09 AM
Patent law was created to protect patent holders, not make it easier for people to use the patented ideas for profit. The Founding Fathers wanted to ensure that someone could come up with an original idea and benefit from it, for a limited period of time. The fact that patents are on the internet is part of the public disclosure requirements of the government. Patents were not meant in the way you describe them.
Patents expire after 10 years btw, while copyright never expires unless the author explicitly places the material in the public domain. Patent and copyright are completely different beasts, and I will admit that confusing the two concepts (and the speed limit analogy) was stupid on Bono’s part.
March 4th, 2007 at 2:30 AM
Nitride — You are partly correct about the purpose of patents; but an equal goal is to bribe inventors into disclosing their inventions rather than keeping the principles secret, so that other inventors can refine and improve the ideas. The word “patent” is Latin for “to lay open”.
The term of patents is not and has never (to my knowledge) been 10 year. It used to be 17 until recently, and (according to Wikipedia) is currently 20 in most countries.
It’s funny you should claim that “copyright never expires”, as this is absolutely untrue (current terms are on the order of a century) but it does reflect the pernicious trend of governments to keep extending the term, as well as limiting fair-use rights, at the bequest of the entertainment industry. If you’re not familiar with this, you’ve missed most of the back-story to this post and should really go read up on it (I recommend Lawrence Lessig’s books) before commenting again =)
http://en.wikipedia.org/wiki/Patents
http://en.wikipedia.org/wiki/United_States_copyright_law
March 4th, 2007 at 6:58 AM
Jens: “That is the whole point of patent law: to keep inventors from hiding their ideas, and to encourage creativity and innovation by letting inventors freely build on the ideas of other inventors
Nitride: “Patent law was created to protect patent holders”
You are both wrong. The “whole point” of patent law is to give people an incentive to innovate. The _means_ is the granting of a temporary monopoly on inventions. But that temporary monopoly is not an end in itself. In fact, it’s a necessary evil.
March 4th, 2007 at 8:49 PM
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March 5th, 2007 at 8:15 AM
March 7th, 2007 at 2:23 PM
With all the DRM crap going on, and the RIAA after everyone, I often find myself wondering why used records and CD’s are ok? Nobody makes a dime off the resale of a cd except the store. You think they would have been all over that years ago.
March 7th, 2007 at 7:02 PM
Rob — There’s nothing illegal about selling a CD. It’s just like selling a car or a painting. The rights are transferred to the new owner.
What _is_ illegal is selling a CD but keeping a copy of the music (MP3s or a burned disc). When you sold the CD you gave up your ownership of the music on it, so you were responsible for deleting any personal-use copies.
April 19th, 2007 at 4:36 AM
In the mid-1990s there was controversy over the sale of used CDs. If I recall correctly, the recording industry threatened not to work with stores that sold used CDs. That didn’t go over very well, but initially many “mainstream” stores did stop selling used.
April 21st, 2007 at 11:36 AM
Few thoughts - Ms.Bono may be right about Apple’s priority is selling hardware, but she’s wrong about Steve Jobs - she seems to have forgotten he’s also on the board as Disney/Pixar and thus has a very significant interest in copyright - and those damned Mickey Mouse extensions.
In addition, Apple do also have a lot of copyright software - given that new Macs are largely hardware identical to PCs the biggest single difference is the copyrighted OS X.
Overall I agree with you - personal copyright theft needs to be treated as an offence comparable to speeding and fare dodging - as a civil rather than criminal act. If the RIA and similar bodies had gone with that approach, rather than ridiculously high costs, they might have got away with it. Receiving a $50 fine, a lot of parents would pay up, and then pay more attention to their kids running p2p software. When you get a $50,000 case - it’s worth fighting.
With regards some other (old) comments : Fairplay doesn’t sell hardware. No one, but no one, buys an iPod so they can use the iTunes music store. The real lock-in is the iTunes software not working with other players - that you would need to port your library to another media manager. A smart company would do that (or even smarter let you keep your library in iTunes but provide software to sync their player).
The final points about CDs bring up an interesting issue that I’m sure we’ll see tested shortly - can I sell my non-DRM EMI AAC fi