mandarine

Introduction

Intellectual property rights in general and patents in particular are monopoly rights under a disguise. For the sake of encouraging innovation and the communication of ideas, society grants exclusive exploitation rights to the company or individual holding the patent, therefore making patents a very effective way for big business to circumvent anti-monopoly legislation.

The justification for inventing the concept of patents in the first place was this one: we wanted to support innovation, so we wanted to reward inventors, and for this we accepted a temporary monopoly in return for sharing the idea (when a patent is filed, the idea is published) and for giving it away (after a 20-year period, the idea goes into the public domain). Obviously, this scheme is more beneficial for society than an absence of protection, which would result in either discouraging inventors, or at least in making inventors keep most inventions secret. When the inventor dies, the idea is lost.

Essentially, it is the general public, or more specifically the customer, who pays for the idea: because of the exclusive exploitation rights granted to the holder of the patent, the product is sold with a higher commercial margin. The good side for the customer is that he/she only has to pay for successful ideas. The ideas which do not make it into a successful product will not generate revenue for the inventors: it is as if these unsuccessful ideas had been ‘given away’ with simply a 20-year delay.

Monopoly is not the only solution

But granting monopoly rights over an idea is not the only way we could encourage ideas. There are at least two other ways.

The first alternative is public research. We do not call them inventors, but I am certain that publicly-funded research scientists are contributing far more efficiently to the world of ideas and innovation than corporations. As soon as they are published, new scientific discoveries enrich the public domain, and they often lead to successful commercial applications from companies who file patents based on industrial applications of free, public-domain ideas.

The second alternative is preemption: society (represented by a government, a patent office, an association, etc.) could buy an idea upfront when the applicant files for a patent. The deal could be the following: how much do you want society to give you (the inventor) in exchange for giving the idea away? This is exactly what big corporations do when they buy patents from private inventors or small businesses. The main difference is that society, now holder of the patent, would choose to give away the idea. The net result is that the inventor has received the same reward, but the general public gets the benefit of the idea for a fraction of the price.

Free ideas have more value than commercial ones

You could argue that 20 years is not long when we consider really really good ideas like the wheel, the bicycle or semiconductors. So why I am so keen on seeing innovation make its way into the public domain as fast as possible?

The first reason is that there is a very stiff threshold effect between something free and something we have to pay for. If I tell you I have an idea which might make your day or even make you rich, but that you have to pay me 10$ first, you would certainly decline the offer. And even if I told you the idea first, and then told you you had to pay 10$ to use it, you would probably decide to try to find another way of doing the same thing rather than pay me the 10$, even though the extra effort you put into it would probably greatly exceed the 10$ mark. Maybe if I had asked you only 1$ or 1c, you would not have been so strong-headed. But if I had given the idea for free, then I am quite sure you would have taken it at once. Or even better: you would have improved on it and probably shared your new idea for free.

This leads to the second reason why I think ideas should all be free: many ideas are just marginally good ideas until they meet a host of other ideas and they can make a fantastic whole. To make a good bicycle, you need the wheel, you need cable spokes, tires, sprockets, ball bearings, a fork with trail, a diamond frame, hollow tubes, welding, light alloys, pedals, cranks, gears, a drive-chain, a derailleur. Each of these is a patentable idea in itself. Imagine you wanted to invent the bicycle and had to pay for all of these but did not know whether you’d sell three or ten, or maybe a hundred bicycles (how could you predict it was going to be the single greatest revolution in human transportation after the wheel?), you would have been stuck.

Ideas have to circulate, they have to meet, exchange, improve each other, talk together, fight. The more barriers between them, the harder it is for them to grow into really great improvements.

Legal costs of enforcing a stupid system

Now imagine I had told you a really good idea for making butter, and then asked 10$ in case you wanted to use the process. You could very well say no thanks and use the idea nonetheless, as no-one would know how you make your butter. Once disclosed, ideas can never be taken back. Therefore it takes a lot of effort to consider ideas like solid objects that can be traded, sold, and taken back.

It is a bit like giving you a chair for free, allowing you to take it home, but asking you 10$ for each time you actually sat on it. I would have to plant cameras in your home (or a pressure detector in the chair) to know whether you were using the chair or not. But that would be a violation of privacy, so I would need to go to the courts and get a legal action started if I wanted to go that way.

Ideas are not solid objects that we can apply the standard commercial business model to. Just like digital music, when one wants to go against the laws of physics (I cannot prevent you from copying a file when I want you to be able to download it for listening, and I cannot physically take back an idea I have disclosed), one has to spend considerable effort on legal aspects. And each time, there is no benefit for society, only lawyers get richer.

A few examples of the costs related to forcing ideas into an inadequate model:

• because patents are a property right, the text must be absolutely unambiguous and must follow a very strict pattern, by law. When I could simply publish my idea in a few lines so that my colleagues and competitors worldwide would understand what it is, I have to spend ten times the effort and force the idea into a very awkward mold of matryoshka-doll-like claims, with very awkward language so I leave as few cracks as possible for the competition to break it or find a workaround.
• because patents are a monopoly right, they are a key element in failing to find commercial agreements. The question of what party will become proprietor of whatever innovations result from a given joint project is so important that we are seeing more and more projects delayed or even dropped because both parties could not find an agreement over the corresponding contract clauses. Instead of encouraging innovation, patent laws are in fact holding collaboration back. When you know how much collaboration can boost innovation, you understand that intellectual property becomes clearly counter-productive in those cases.
• because ideas should never be disclosed outside of the patenting process (otherwise the patent is not valid) and because the patenting process is so long (up to several years), we are stuck in the development of a great new idea: we need external funding to proceed, but we can hardly communicate what it is we want funding for. And even if we can communicate, we are asking funding while telling at the same time that we will have exclusivity. I do not know many customers who would love such a bargain.
• legal battles over a patent result in so much legal costs that any commercial profits from the exploitation of the patent would be nulled. Big corporations know it. This is why they favor quantity over quality: nobody will dare to question the validity of 1000 patents. Between them, big corporations merely count patents and mutual patent violations, and they generally do not go to full-fledged legal action. But against smaller businesses, they do not hesitate to unleash the steam-roller.

Costs of monopoly

As mentioned above, legal costs are so high that nobody really dares to question patents. Therefore, big corporations with a lot of cash, a large patent portfolio, and an intimidating team of IPR lawyers can essentially claim monopoly over almost anything and kill off weaker competitors by simply raising the fist of their intellectual property rights.

As they get more powerful and richer, they start intense lobbying in favour of extending intellectual property rights:

• in scope (patenting living things, patenting exotic medicinal plants that aboriginal healers have always used but never published about, patenting genome,…)
• in time (there is intense lobbying from big pharmaceutical firms to extend patent monopoly from twenty years to fifty or seventy years, with the justification of long time-to-market for new molecules)

As they can keep their monopoly only by renewing their patent portfolio, they start a runaway race for innovation. Innovation for the sake of monopoly, not for the sake of any true advantage to the general public. And to make sure the general public runs along, they start spending the monopoly money on advertising. By endlessly fueling our frustration and making stuff with the new patented gizmo appear so much more desirable than the stuff we just bought, advertising contributes to the general dissatisfaction while it feeds landfills. Therefore, not only do we have to pay more for some innovation because it is patented, but as it is an innovation we do not really need, we pay even more for the advertising which frustrates us into buying it; and a little extra for resource depletion and pollution.

Just give

We should just give our ideas away. After all, an idea is the least costly and the most valuable gift.

I will write soon why I even think there is a business model for open-source industrial innovation just like there is one for open-source software. Stay tuned.

(cross-posted at absidea)

Prelude

Politically, I am on the liberal side (possibly as liberal as they make them in France, but not brave/foolish enough to hope a revolution could help things out). Note for French readers: ‘liberal’ means rather the contrary of ‘libéral’.

But linguistically, I am a conservative prick. I do not often rant in public, but allow me to do so here:

• I hate it when people invent new words for old words they did not even bother to learn, and then think they are smart;
• I loathe jargon and acronyms that make it into general language;
• I shudder at spelling mistakes or inadequate punctuation in widely distributed papers and magazines or even books;
• I am ill-at-ease when people I know can’t spell two words right are speaking to me, because I am convinced they are making those spelling mistakes even as they speak;
• I detest it when grammar mistakes travel by way of radio waves from the mouth of an illiterate journalist to the minds of could-have-been-literate-but-too-late-for-that-now listeners;
• I dislike it when people say that language has to evolve, that it’s natural that it should do so, that it must adapt to the new times;
• I would be sorry to learn that people in a hundred years from now have to have Molière or Voltaire translated into new French. It is already enough that we have to have Montaigne and Rabelais adapted now;
• I would kill the guy who invented leet speak (but I keep a cool head and hope this is just a fad).

Let me justify myself: I am convinced that spoken language has a right to change, and that there is no freezing it. But I am also convinced that written language and official speech (as in TV or radio broadcasts, newspapers, magazines, books, blogs) must not follow the fashion. Otherwise, it is our literary legacy, the very memory of our culture which goes down the drain as we forget how to speak the language of our forebears and otherwise illustrious predecessors.

Written Icelandic language has changed so little that people can still read viking sagas from the 11th century. Does this make Icelanders more archaic? I do not think so.

What can we express today with modern English that Shakespeare could not? What nuances and accuracy of description do we have access to now with modern French that Villon (or even Ovid) did not?

What is at stake is the ability to communicate with the past (a one-way communication, but better than nothing), so that we are not a bunch of oblivious gnus going about our little businesses but we are part of a history. This is what George Orwell so accurately described in 1984: to force oblivion (and to channel thought), Big Brother had invented Newspeak.

Unfortunately, Newspeak is being made right now because we fail to learn and transmit language with all its depth and breadth; while we mine what little is left with bad spelling and bad grammar.

Blame it on the media

Then I point an accusing finger: I say that the collective carelessness of journalists is what causes all the ills of contemporary language and is turning everybody into illiterate savages. I would not have said that a hundred years ago when teachers and priests were the guardians of the country’s language. But now teachers are no match against the big media in terms of authority and broadcasting time; priests are gone; and classics cannot compete with magazines and other hastily-published prose. With their large audience, under-read mainstream journalists distribute bad spelling and grammar, improper words and unhappy neologisms as if it was the Holy Gospel.

There is hardly anyone left in France who knows that ‘après que’ is not followed by subjunctive mood. There is hardly anybody left across the Atlantic who knows what subjunctive mood is.

A digression

What are we to do? We cannot sentence nine in ten journalists to forced (linguistic) labour in Cayenne. We could try to re-educate them, but some might argue that it is too late for that and we cannot change behaviours overnight on such a large scale. Yet, we have seen miracles in the not-so-distant past on other subjects, and I gather we might reproduce such a miracle here.

The miracle I am referring to is what speed cameras did to French driving habits over the past five years. If there is one thing former President Chirac should be hailed for (apart from not going to Irak), it is the drastic reduction of the death toll on French roads. Before 2001, there were 8,000 deaths each year (that’s two and a half 9/11 attacks each year). In 2006, the yearly death toll was below 5,000. Between 2001 and 2007, more than 11,000 people did not die (maybe I am one of them), because the driving habits have adapted to speed cameras. Ruthless repression has succeeded where decades of weak calls to civic behaviour and drivers’ responsibility had miserably failed. End of digression.

The idea: a distributed language stasi

Whenever an official communication channel (TV, radio, newspaper, theater, political speaker, book, magazine, administration, anything that has some authority to the eyes of the public) makes a linguistic mistake, they would be fined for it. In order to avoid the complexity of a big state-run censorship department having to check everything, it would be up to the general public to detect and report mistakes. There would need to be a few experts for litigious mistakes, but I am sure that a wikipedia-like distributed organization of ordinary citizens could do the job quite well. Once a mistake is validated, the orgnization from which the mistake originated is fined (the broadcasting company, or the editor, or the ministry, whomever we can lay our hands on).

The key element in this process is that half the financial benefits from the fines go to the people who reported the mistakes. Citizens therefore act as automatic language cameras.

But it does not stop here. Soon enough, the big media companies will see that they are losing a lot of money. And the amateur censors will gradually make a real living from reporting language sins (by the way, this would give new credits to literary-type skills). I am quite convinced that they can find some sort of understanding, and that the successful censors will be offered official positions as correctors or personal language coaches inside the big companies. In the end, there will be fewer stray mistakes, and language will straighten itself up.

Who wants to sign the petition?

If you want more language ranting, I warmly recommend Tim’s Mother Tongue Annoyances blog

Two naughty kids play a stupid game: they throw bricks off the terrace roof of their high-rise apartment building. Basically, they hold the bricks over the railing, let go, and run off to hide so that nobody sees them.

One day, a man walks out of the lobby on the ground floor, just as two bricks are following a parallel free-fall trajectory in mid-air. One brick hits the ground two feet to the right of the man and smashes to pieces with a loud thud, while the other kills him.
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Piracy is theft: now and then, when I watch a DVD, instead of the typical legal warning text, I have to watch a complete video sequence involving people stealing cars, purses, and other objects, and the ending shot is someone downloading something from the internet, with a vibrating slogan in large red letters: Piracy is Theft. I say no. Piracy is piracy, theft is theft, and it is not up to Sony Music or Warner Home Video to brainwash me into redefining what theft is.

What is theft?

I believe that ever since the concept of property has germinated inside the narrow conscience of a pervert Homo not-so-Sapiens (germination accurately captured by Jean-Jacques Rousseau in Discours sur l’origine et les fondements de l’inégalité parmi les hommes), theft has always been two inseparable things: the victim is deprived of something he/she has worked for, while the thief obtains something without having worked for it. Prejudice for the victim, benefit for the thief. Which one is more important?

I frankly doubt we would consider theft the same way today if historically it had not deprived the victims of their property. If people could still use their stuff after it had been stolen, I doubt they would even contemplate filing a complaint with the police.

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The more American victims in an air crash, the heavier the financial burden for whomever is found responsible in the tiniest manner. Having worked in the aircraft manufacturing industry, with passenger safety constantly in mind, I have long had issues with this fact. I could not help wondering what were the moral/logical grounds to value loss of life in terms of financial compensation.

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When I drive my car — yes, I do occasionally drive a car, although I would not boast about my driving abilities — and an inarticulate fellow driver brakes abruptly just in front of me, passes me on the wrong side, or flashes his lights at me when I am peacefully passing a line of slowish trucks, I generally hear the non-driving driver sitting next to me utter a number of barely polite reproaches to the indelicate vehicle, while I am keeping a very cool-headed, totally non-french phlegm. One day I was trying to get the beloved one to calm down, I made up the rhino analogy.

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