I'm really happy to see Obama's transition website continue from the earlier campaign site to feature a "Technology Agenda". However, it has one particularly glaring deficiency that concerns me. Even while calling for "reform", the following statement demonstrates a fatal misunderstanding of the role of intellectual property in today's world:
"Intellectual property is to the digital age what physical goods were to the industrial age."
This statement is dangerous because it ignores the real story of the "digital age": the fact that the rise of the Internet can be largely credited to free and open source software that expressly disclaims any notion of property rights. In fact, one could argue that the Internet is built primarily on open source software. Apache, LAMP stacks, low-level TCP/IP networking code, firewall code, all open source.
Without the intellectual commons created by the coders, tool builders, web designers and other enthusiasts who've built the Net, the Internet would look more like a gigantic closed AOL of yesteryear. Tinkering, hacking, and "scratching your own itch" are as important drivers for the open Net as are the billions of dollars of investment in commercial software protected by strong intellectual property.
This language in the Technology agenda would be more accurate if it read:
"Intellectual property is to the digital age what monopolies were to the industrial age."
In fact, most forms of intellectual property are state-created monopolies created around the exploitation of expressions (copyright), ideas (patents), or brands (trademark). Monopolies in and of themselves are not evil - in fact there are good reasons for some monopolies to exist (for example, so-called 'natural monopolies'). But any policy towards intellectual property should recognize its basis as a form of monopoly, and should treat intellectual property policy with the same public policy aims as the monopolies of the industrial age. That is, to sustain growth and most effectively meet our economic (and creative) potential, the rights of IP holders (those who hold state-protected monopolies) should be balanced against factors such as consumer benefit (very broadly defined), and the distortion of normal markets (tying, anti-competitive behavior, etc). The language used in the technology agenda raises concerns that no such balancing would be part of the Obama administration's policy objectives.
I hope I am wrong, and that the actual policies developed by this administration will be more balanced.
I am writing this blog partially as experiment in direct democracy via blogging. In doing so, I'm hoping this new administration is more willing to adapt to public calls for change than the last one.
In other words, I'm hopeful we can make the change we seek!
Larry Lessig has decided not to run for congress here in the 12th Congressional District, recognizing that an attempt to beat Jackie Speier is only going to end in a blowout defeat, which doesn't further the goals of Change Congress.
This only redoubles my respect for the good law professor. This first decision was a right one, I only hope there are many more to follow!
[Update Feb 21, 2008 11:31pm PST: Shelly Powers has a much more negative response to Lessig's run for Congress. She makes some good points about the Change Congress plan, and raises some important substantive concerns about Lessig's proposed candidacy. ]
Professor Lawrence Lessig, in conjunction with his recently announced "Change Congress" effort has announced that he is contemplating running for Congress from the 12th Congressional District, recently vacated by Tom Lantos' surprising and unfortunate death recently. Thats my congressional district. A chorus of netizens have cheered loudly about the prospect of a Representative Lessig, and have begun a Facebook group and a web site to encourage him to run.
I have been a supporter of Jackie Speier, a local public servant who has a long and magnificent history serving this area in a variety of seats, from county supervisor to state senator. She announced her intention to run for this Congressional seat and everyone I talk to enthusiastically supports her. She's got deep grassroots as well as establishment support. We've got a special election coming up April 8th (to fill the remainder of the term) where she is certainly going to win a plurality and very likely to win 50%, thus heading off a "runoff" in June. She'd have to run again at the end of the year for the seat as well (for the next term). Its too bad that we have to choose between Lessig and her - neither of them are your run-of-the-mill "hold your nose and vote" candidate!
I'm deeply torn because though I have been (and continue to be) a Jackie supporter, I, like many of my fellow netizens, am deeply moved by Lessig's attempt to change congress through the severing of the ties between election-driven fundraising and legislative activities. Its a sincere effort to kill the corrupting systemic influence of money on politics. I was moved by the video on Lessig's exploratory site:
I must also admit that I also feel a tinge of resentment to the chorus of calls for him to run. He would be my representative, not yours. He's never been to local community events or been involved in local political activities or causes, as far as I know. Other than living in the district, I'm not clear what ties he has to to the community. He's got to deal with issues in the district first and foremost, and not just the reform agenda. Also, being a legislator means practicing the art of compromise. Being an effective legislator is about sausage making. Is this really the best way to push forward the Change Congress agenda? I really am uncertain and am eager to be convinced.
In addition, I have very little idea about what his policy positions are outside reform. We have a tendency to support similar candidates (notably Ro Khanna's challenge to Lantos in 2003/2004, and now Barack Obama), but I've heard NOTHING about his view on local issues where someone in this position has quite a lot of influence. To be clear, I think these deficiencies are "curable" (not sure if thats possible in the 6 or so weeks we have until the election), but they definitely need to be addressed if he is to be anything other than a footnote candidate. I'd invite him to come, for example, to a meeting of San Mateo County Democracy For America and discuss face to face why he wants to be our representative - at least one other candidate already has.
Finally, I want to share an email I sent personally to Larry Lessig. I've actually grown more positive towards his run since I wrote this, but I think it probably reflects the sentiments of many of us locals:
Prof Lessig-
I have rumors that you are considering a run for
the 12th CD congressional seat recently vacated due to Tom Lantos'
untimely passing. As a fellow resident of the 12th CD, I urge you *not*
to run for this seat, both because I think you can be more effective in
other roles, and because I believe Jackie Speier will win and will be
an even more effective representative.
I believe I share many of the same values with you, judging by
your past and current political and other advocacy positions. In 2003,
I actively supported Ro Khanna in his primary challenege to Tom Lantos
(in addition to supporting the Howard Dean candidacy). In fact, I
attended a fundraiser at your house for Ro. More recently, I have been
actively supporting Obama - another candidate you have been vocal in
supporting. I am also an active supporter of Creative Commons and all
the work you've done over the last 10 years - I first heard your name
while at Boalt in the mid-90s, and you've clearly inspired a whole
generation to focus on legal and policy issues unlike others before.
I am enthusiastic about your recent change in focus towards
political corruption and the influence of money - while I've been a
huge supporter of Creative Commons and IP reform in general, I believe
your attempt to tackle systemic corruption is so much more important.
However, I believe you can be more effective in this role as an
independent voice, not as a member of Congress. Even a position for you
in an Obama administration (lets hope!) would be more conducive to your
message, I would think.
In closing, let me also make a pitch for Jackie Speier. She has
deep roots in northern San Mateo county and southwest San Francisco.
She's shown her ability to be an effective legislator and has a record
of leadership on privacy and consumer protection legislation. I would
hope that you could build a relationship with her to pursue your goals
rather than trying to challenge her in the primaries. If you aren't in
communication with her, I'm sure should would be more than excited to
talk with you directly - I'd be happy to help facilitate that in any
way I could.
Let me be clear - I understand the enthusiasm that many have for
the possibility of being able to say "Representative Lessig". It gives
me goose pimples too! But the realist in me believes that you would be
more effective in other roles, unencumbered by the day-to-day
sausage-making that is the House of Representatives.
Thanks for listening, and I look forward to hearing more from you on this topic soon!
Yahoo! announced planned support for OpenID (as a OpenID provider) today. Thats thrilling news - congratulations to everyone at Yahoo! for taking the plunge. The timing, however, is not much of a surprise to me...
If anyone doubts the importance of an IPR policy for your grassroots community-driven open standards effort, this should be an important lesson. A group of us from the OpenID community worked for a number of months with a number of large organizations including Yahoo! to hammer out a OpenID IPR policy (and a lightweight community process to support the policy). That policy wasn't finally agreed to by the OIDF board until mid-December of 2007 (and the announcement on the OpenID site wasn't made until there were only 2 minutes left in 2007!). Without such a policy, large organizations such as Yahoo!, Microsoft, Sun (and a number of others) are not comfortable participating, especially with unclear rules about copyright and patents. While these companies have been itching to contribute to (and use) OpenID in a very community-positive manner, they simply haven't been able to without having a well-defined set of rules to play by. After all, it's the big pockets like them that get sued, not the 5 person startups and independent developers who have been the mainstay of OpenID development until recently.
We'll have to see how this policy and process works out. Its a new thing, and we'll have to explain to a lot of folks why the rules are the way they are. If you are a OpenID community participant, I encourage you to review the documents, and please do not hesitate to ask questions to me, individuals the board, or the openid-legal email list.
One issue that has not been finalized is dealing with trademark around the OpenID mark. That discussion is starting now. Look for news on that in the upcoming month or two.
The hardest thing about working on Open Specifications efforts is keeping your mouth shut.
I'm talking about keeping your mouth shut when you see something you want to change - will the net benefit of just even making the suggestion outweigh the costs of prolonging discussion and delaying close of the spec? Usually not, especially if the spec is getting close to being finalized.
So, my greatest contribution is usually just keeping my mouth shut!
Congratulations to the OAuth community, btw, for getting out an final draft in a relatively quick period of time!! Now if they would just get their IPR house cleanedup ;-)
UPDATE: Oct 04, 2007 3PM PST: The press release is out.
We've been working on this for months and now we've got it to a state where we'd like public review! Comments should be sent to the legal at openid.net email list, or if that's really too much work, you can add comments to this blog post, and I'll forward them to that list.
Danny Weitzner, of W3C (someone who's work I know of and respect), recently posted an article entitled "Whose Name is it Anyway? Decentralized Identity Systems on the Web". In it, he suggests XRI "should be avoided at all costs." The main point he makes is that its centralized registries should be avoided, which I won't discuss here.
The statement I find most disturbing is the IPR FUD-bomb he drops:
XRIs ... (come) with a great deal of patent licensing uncertainty.
I'm not sure what "uncertainty" Mr. Weitzner is talking about, but
merely stating that "uncertainty" exists, without supporting facts, is exactly what
the "U" in FUD refers to.
In the context of the IPR discussions taking place around OpenID, making such a patently false (pun intended) comment strikes me as irresponsible, at best. At worst, its comes off as classic, vile FUD: a recognized expert using their stature and position of influence to sway observer opinion without any basis in fact.
That being said, I will give Mr. Weitzner the benefit of the doubt, and assume he's really just misinformed - or perhaps that the communication of the IPR around XRI is confusing - or even that he finds it somehow "uncertain". But I would ask him for a more responsible summary of the IPR around XRI in his public communications.
All the parties involved in XRI have tried very hard (and I believe, successfully) to make the IPR situation crystal clear: free and open, do with XRI what you want. There's open source implementations on the server side and client side, there's no royalties, etc.
The IPR statement for the XRI TC is here . The TC is operating under the RF on limited terms, which is the most open-source friendly and open licensing IPR mode an OASIS TC can operate under.
If anyone has any concerns about the IPR state of XRI, please let me know directly! If there are problems, we want to fix them. If you have questions, I want to answer them. Please ask us directly instead of relying on statements made by 3rd parties like those in the article mentioned above.
Thanks to my Boalt classmate Julie Turner, I found out that the U.S. Supreme Court handed down a ruling which appears to give teeth to the requirement that the claims of patents be obvious - the "obviousness" test. Patent law is complicated, but to (over)simplify it, the court held, in KSR International v. Teleflex Inc (pdf version here) that the obviousness test was being applied way too narrowly by the Federal Circuit (appeals circuit that handles patents) and that a number of new tests should be applied in trying to find obviousness.
The closing paragraphs of the opinion are particularly exciting (emphasis mine):
We build and create by bringing to the tangible and palpable
reality around us new works based on instinct, simple logic, ordinary
inferences, extraordinary ideas, and sometimes even genius. These
advances, once part of our shared knowledge, define a new threshold
from which innovation starts once more. And as progress beginning from
higher levels of achievement is expected in the normal course, the
results of ordinary innovation are not the subject of exclusive rights
under the patent laws. Were it otherwise patents might stifle, rather
than promote, the progress of useful arts. See U. S. Const., Art. I,
§8, cl. 8. These premises led to the bar on patents claiming obvious
subject matter established in Hotchkiss and codified in §103.
Application of the bar must not be confined within a test or
formulation too constrained to serve its purpose.
KSR provided convincing evidence that mounting a modular sensor
on a fixed pivot point of the Asano pedal was a design step well within
the grasp of a person of ordinary skill in the relevant art. Its
arguments, and the record, demonstrate that claim 4 of the Engelgau
patent is obvious. In rejecting the District Court's rulings, the Court
of Appeals analyzed the issue in a narrow, rigid manner inconsistent
with §103 and our precedents. The judgment of the Court of Appeals is
reversed, and the case remanded for further proceedings consistent with
this opinion.
I was listening to NPR today and heard about a major announcement by IBM about their intent to be more responsible about patenting, in part by participating in a trial program to publish their patent applications online for peer review, and commiting resources to the "Community Patent Review" program. After hearing a positive comment from Pam Samuelson, I decided it was actually an important development. IBM is the 800-lb gorilla of patents - if any single organization can influence the patent system in the US, its IBM...
As part of this effort, IBM has published a great (balanced, honest, realistic, stimulating) report on the results of an effort of interested community members around a wiki focused on addressing issues in the patent system: "Building a new IP Marketplace".
If you want to get involved, there's a wiki for organizing the Community Patent Review effort (called "Peer 2 Patent"). I note that this is a Beth Noveck (of NY Law School) project -- the "dotank" desribes itself this way:
The Do Tank strives to strengthen the ability of groups to solve
problems, make decisions, resolve conflict and govern themselves by
designing software and legal code to promote collaboration. Tools alone
cannot create a culture of strong groups. Hence Do Tank projects
address the role of legal and political institutions, social and
business practices and the visual and graphical technologies -- what we
term the "social code" -- that may allow groups, not only to foster
community, but to take action.
The dotank did some interesting stuff with my favorite alternate reality: Second Life.
