There is an active discussion about the impact of patents on innovation in technology caused, in no small part, by the recent successful conclusion of Apple’s legal action against Samsung for patent infringement. Our question to you: What is the best way to support innovation in theory and in practice?
Collateral Damage from Patent Litigation
Earlier this month, two New York Times correspondents, Charles Duhigg and Steve Lohr, published a piece arguing that many technology firms, chief among them, Apple, are using patent infringement litigation as a competitive tactic which, as a by product, stifles innovation.
Duhigg and Lohr cite several cases of small technology firms that were forced to capitulate to larger firms because they could not afford defense costs. They write: “pall has descended: the marketplace for new ideas has been corrupted by software patents used as destructive weapons.”
On the other hand, however, the elimination of protection in the form of patents might have worse consequences. Duhigg and Lohr note that the purpose of patents is to protect the substantial investment that inventors make in research and development to bring innovations to market. If there is no sanction, piracy would negate the value of these investments, and remove incentive to invest in new technology.
Goin’ Down the Road with Open Source
Can this circle be squared? Perhaps, but only with a leap of faith. Back in the very early days of the commercial internet, John Perry Barlow, a founding member of the Electronic Frontier Foundation and lyricist for the Grateful Dead published a seminal piece in Wired Magazine, entitled The Economy of Ideas. Cutting to the chase, it is subtitled, “A framework for patents and copyrights in the Digital Age. (Everything you know about intellectual property is wrong.)”
Barlow’s primary thesis is that any and all attempts to limit the free movement of ideas in the digital age are doomed to failure. Barlow says that this is not a product of the age, but rather is inherent in the human condition and just made manifest by digital technology. He begins the article with a quote from the political philosopher and US president, Thomas Jefferson:
That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
So, how do we ensure that inventors get compensation for new ideas? Barlow replies based on his own experience:
In regard to my own soft product, rock ‘n’ roll songs, there is no question that the band I write them for, the Grateful Dead, has increased its popularity enormously by giving them away. We have been letting people tape our concerts since the early seventies, but instead of reducing the demand for our product, we are now the largest concert draw in America, a fact that is at least in part attributable to the popularity generated by those tapes.
True, I don’t get any royalties on the millions of copies of my songs which have been extracted from concerts, but I see no reason to complain. The fact is, no one but the Grateful Dead can perform a Grateful Dead song, so if you want the experience and not its thin projection, you have to buy a ticket from us. In other words, our intellectual property protection derives from our being the only real-time source of it.
In short, through continuous improvement.
This approach became operational with the Open Source movement, which brings us ‘free’ products such as Firefox and Wikipedia.
It is also the basis for much work in the area of data standards development by organizations such as ACORD and CSIO.
What Do You Think?
So, our question to you is this: Are patents and other legal methods to protect intellectual property the most effective way to support innovation, or should we be looking to models such as Open Source? Moving from theory to reality, will litigation continue to grow in this area, or will we move to more cooperative development.
Leave a comment. Let us know what you think.