Greg Aharonian's Patent News (sign up here) comments on recent remarks by Larry Lessig:

LARRY LESSIG'S RECENT PUBLIC BREAKDOWN INVOLVING SOFTWARE IP LAW

Larry Lessig recently spoke at the Open Source Business Conference in San Francisco, where once again his fictions about the effects of patents and copyrights were almost .... hallucinogenic. Some quotes from an article, a Web page, and a silly article in the New York Times (4/9/2005, page A17 titled "Exploring the Right to Share, Mix and Burn" - the Times article was about another talk he gave) to so illustrate. First from the New York Times:

Mr. Lessig added that the decision to outlaw downloading would have a profoundly inhibiting effect on the creation of culture.

Yes, in the 10,000 years of human history before the ability to download, there was no significant creation of culture. Now Lessig could be talking about yogurt, but I am not sure which argument is less idiotic.

Mr. Lessig said that "the freedom to remix, not just words, but culture" was critical in the development of unforeseen works of art.

Yes, in the 10,000 years of human history before the ability to download, there was no significant development of culture based on remixing (did I imagine the remixing of lingerie art and Proust on Monty Python?).

A letter in the January Wired (which is so serious about IP it gives Larry a monthly column) criticizes this remix assertion:

Wired paints a rosy picture of the creative freedom offered by digital sampling and remixing and compares it to the tradition of musicians borrowing rifts from their forebears. But there's an enormous difference between hearing a Muddy Waters riff, picking up a guitar to learn to play it, and merely sampling the recording itself. The former encourages creativity. But with digital sampling, there's no need for any learning to take place. Thus a key step in the creative process is lost, and along with it the originality that makes music meaningful. One need only listen to the CD that accompanies this issue to hear this discouraging, depressing results of this loss.

Back to Larry.

"What does it say about our democracy when ordinary behavior is deemed criminal?", Lessig asked.

First, this is a criticism of copyright law, since patent law has no criminal sanctions. And given the utter vagueness of copyright law "insanely complex and vague" in Lessig's own words), for constitutional whiz Lessig to keep on making this complaint, and not acting, is pure hypocrisy.

Next from the blog:

Stanford law professor and free software advocate Larry Lessig called on the open source community to stand up and fight or risk being buried by patent-wielding legacy businesses with arsenals of powerful lawyers. "There is a war against the freedom to innovate and this community has done way too little to resist," Lessig said.

How many years of repeating this lie with no proof will rational minds have to suffer? War against freedom to innovate? By what statistical measure of new patent applications, new journal articles, new product announcements, new venture fundings - [by] what measure is there proof that innovation is being threatened, let alone being attacked in a war?

Unless Lessig can offer such empirical data, he should shut up on this issue. And make sure that you subtract out the effects of bad business models and the inability to innovate when measuring impact of patents.

"Microsoft believes a form of property [patents] to be their saving grace. There is a huge sucking sound as Microsoft fills its arsenal with lawyers.", Lessig said. ... According to Lessig, big, bad, Microsoft wants to lock out competition, and the open source world - what Lessig likes to call "free software" - community is the anti-monopoly. Despite the fact that Microsoft has mostly used its patents defensively so far, the company could switch to offense he said.

Again, economic nonsense. Microsoft has business-wise IP lawyers, especially the ones they hired from IBM, the best training ground. The smart company always is interested in a piece of the action, not to kill the action - no action, no profits to get a royalty from. Given the limited profits in open source companies, if any, any potential royalties for Microsoft are too minuscule as compared to the company's huge cash flows and hoards as to make patents fairly useless as a saving grace for Microsoft. A nice threat to scare children (probably why Larry whips out the threat to open sourcers). On top of which, I occasionally review new Microsoft patents and patent applications - much like everyone else, lots of crap, at least as measured by the paltry prior art submissions. Interesting that Larry is silent about IBM and Intel, which are far more assertive with patents, than Microsoft will ever be. Is Larry suggesting we strip Intel of its patents to make hardware more innovative?

He called for Republicans in the crowd to get involved, so that the Republicans in power can't simply dimiss the liberal Democrats advocating change in the patent process and IP regulations as "communists."

Anyone else hearing the Republicans calling Democrats "communists" over IP issues? Additionally, if the Republicans in Congress stopped voting to steal PTO fees, less questionable software patents would issue leading to less "threats" to software companies. Kind of naive and dubious for Lessig to want the Republicans to get more involved.

Now from the Information Week article.

After years of case law, "there's no clear showing of benefits over harm" in software patents, he argued in an address to attendees at the OSBC. Patents exist to protect a particular company's development effort, but they end up serving as a means for early innovators in a field to tie up subsequent innovations years later through legal means, he said.

Again, where is the proof that software patents are tieing up subsequent innovation, and where is the comparative economic analysis that software patents cost/benefit ratio is that much different from hardware patents, drug patents, etc.? Larry, some serious economics or shut up.

Being challenged on a patent or copyright violation will immobilize a young, innovative company's resources in the courts, or worse, put it out of business. SonicBlue, owner of the ReplayTV digital video recorder, was sued in 2001 by Disney ABC network and the Viacom Paramount movie studio for violation of copyright. The plaintiffs did not have to prove their case to get SonicBlue out of the market. It went bankrupt 18 months later, having spent $3 million a quarter defending itself, Lessig said.

FINALLY, FINALLY - Lessig offers some empirical data about the negative effects of software IP, and what is the IP? Not patents, but COPYRIGHTS. Indeed, the experience of SonicBlue is just as bad as the 1980s case of Mosaic Software, a company that was forced out of business falsely when now-open-source-advocate Mitch Kapor's Lotus Software sued Mosaic for violating Lotus' copyrights in its spreadsheet (Kapor was mostly out of Lotus by then). Mosaic ran out of money in the lower courts before Paperback Software prevailed in the higher courts, which ruled that GUIs such as Lotus' menus are not copyrightable for being functional, the domain of patents. So Larry, do an empirical study (by empirical I mean gathering data [i.e. facts] and analyzing them reliably [i.e. statistics]). Does anyone know if Stanford has a business school that Larry can get some advice from?

But Lessig said any company bulding up libraries of patents might be unable to resist the temptation to claim ownership of software and sue future innovators who are invading what the established company considers its turf.

In citing no examples, Lessig is conceding that this hasn't happened that much in the last twenty years of software patenting when over 200,000 software patents have issued. Any Bayesian analysis would assign a low probability that this will happen in the future. Assuming lots of future lawsuits will happen reveals an ignorance of the economics of asserting patents. Efforts like the EFF's prior art archive, as big a joke as the IBM's Software Patent Instipuke (the biggest joke), doesn't help.

Open source code software developers can actively support political candidates that oppose the excessive granting of patents he said.

Silly. First, Congress loves the excessive granting of patents - more PTO fees for Congress to steal, and more tax revenues from the profits that lawyers earn from patent litigation. Second, the few times that Congress has acted on IP policy, it has made a mess (starting with copyright for software, where technically it still hasn't acted on).

They can invest in companies that foreswear the use of patent-based legal action against other software developers.

Yes, a good way to turn $1000 into $10. Maybe I should start a hedge fund that goes long for stocks whose companies swear to use patentswhile going short for stocks whose companies swear not to use patents.

The debate is miscast as the United States with its patent laws versus China and other places that don't enforce patents, he said.

Instead it should be viewed as a contest of the interests of big, established companies versus small companies and the innovators yet to come.

A message to Mark Lemley. Table all of your current legal activities and explain reality to Larry (like your recent paper with John), or return to the serious IP thinkers at Boalt.

(Re-formatted for clarity: 04-13-05, 10:00 a.m.)