Re: Open patents and intellectual property

[Mark Shewmaker <mark@primefactor.com>]

On Fri, Jan 14, 2000 at 03:21:00PM -0500, Arthur Smith wrote:
> I sent the following to Bruce Sterling after reading some of his
> Viridian ideas (http://www.bespoke.org/viridian/). I haven't really
> heard back from him yet, but it seemed relevant to this list too, now
> that I've discovered it.

It seems most relevant.  Thanks for forwarding it here.

> The OPL (if it works as I think it should) may
> be another major step in moving us to a new concept of information
> sharing, as opposed to the information hoarding that surrounds the very
> term "intellectual property".

I would like the OPL to be able to do just that, only focused on the
issue as it relates to patent and patent-like intellectual properties.
(There are already other groups that are doing a fantastic job of
addressing the issue from copyright, writing-code, writing-documentation
and writing-systems viewpoints.  I just want to address the issue from
the point of view of patents and things that effectively act like
patents.)

However, one of my more long-term goals is in fact to implement
alternate methods of promoting discovery and invention, (and in which
the discoveries and inventions are licensed under the OPL instead of
merely being known of but inaccessible).  Removing restrictions on
sharing IP will help things a lot in and of itself, but the real gains
will come in implementing a system designed to function best in such an
environment, (such that people are rewarded for creating accessible
solutions as opposed to creating combination solutions/roadblocks.)

However, the former has to be done before the latter can be implemented,
so the more short to medium term problem is to debug and promote the OPL
in order to provide way out of the trap that I think people generally
get stuck as relates to patents.

I think people and organizations tend to get stuck in a type of
game-theory trap when thinking of how to manage their patents and
patent-like IP.  Most players see value in restricting the rights to use
these IPs, but I think their judgments are based on distorted
information:  The costs and benefits of the two types of strategies,
(restriction versus dissemination), are not as clear as they could be;
important information is missing or distorted, and that biases the
players' judgment toward restricting use.

There is no way to see the true costs of patent restrictions when
everyone is forced to participate under these same system of rule that,
by design, rewards restriction.  If players could opt out of that
system, they would be able to objectively determine whether
participation is beneficial to them.  Without a perfect and globally
available method of opting out, the true overall costs of restricting
discovered information and invented techniques and solutions remain
hidden, and the benefits of wide dissemination of the same remain
unclear.  To be fair, an opt-out system should also show the costs of
opting out.  If there are inventions and discoveries that would not have
occurred were the relevant intellectual property not in force, then
those things should not be accessible to participants when opting out.

It's not possible to create this perfect, globally-accessible method
of opting out of the system without legislative changes.  However,
it should be possible to put together a limited opt-out system
through voluntary agreements that can effectively get us most of
the way to a global opt-out system; I want the OPL to do just that.

Speaking in broad terms, under the OPL you agree to abandon your
patent and patent-like monopoly powers over all who also do so
to the same or greater extent.  You can enter the system gradually,
through any of 7 Options; you needn't "abandon" all your applicable
intellectual property at once.

The OPL is designed to make it safe to share your IP; no one should be
able to take advantage of your generosity.  If someone uses the OPL to
make or distribute a product incorporating your IP, then assuming you've
agreed to a high-enough Option of the OPL, you'll have just as much of a
right to make a similar product as this other person does, even if the
product incorporates 200 OPL'd patents from 30 different companies.  You
may need to rewrite code if the product incorporates proprietary
software, but you're not prevented from writing a competing version.

The fact that some IP restrictions have been lifted is of course not
guarantee of success.  The basic rules of economics still apply:
You still need solid funding, good employees, efficient manufacturing,
good management, etc.  The only difference is that some restrictions
on creativity will have been lifted.

Those IP restrictions are only removed under "opt-out" conditions.  The
OPL will generally not apply if you incorporate non-OPL'ed patents into
it.  You have just opted back into the system in a very localized way,
just for this product, and you will have to negotiate patent licensing
agreements with the owners of all patents that are incorporated in this
product.

(Note:  The OPL only addresses the licensing of patents and IP that
restricts similarly to patents by attempting to prevent
re-implementations.  Restrictions on the look and feel of a user
interface, (whether based on patent, copyright, or trade dress
restrictions), restrictions on reading and learning from material made
available to you, (better known as reverse-engineering restrictions),
are examples of what I'm terming patent-like restrictions.  The decision
to disseminate or restrict the flow of information is of course a larger
issue than just patents, but there is no need to address the broader
issue here.  The OPL can address the issue from a patent and patent-like
IP standpoint; other folks are already doing a marvelous job at
addressing other parts of the issue.)

That was a bit of a rant there, but the main idea is that yes, I do want
to make sure people can use the OPL to go from a system that rewards
restriction information the rights to use it to a system that rewards
dissemination of information and the right to use it.

> It's essentially the same issues and the
> same problems whether you're talking about open source, self-published
> MP3's, Sterling's open design ideas, or anything that flies against the
> way patent and copyright concepts have been misused in the last decades
> of the 20th century.

I agree.

One thing I want to make sure of is that the scope of the OPL is well
matched to the goal of providing a way out of the trap patent-like IP
restrictions cause.  (Making sure the problem in general is addressed,
as opposed to just the most well-known specific implementation of the
problem.)  But as to the scope of the OPL:

1.  It should address IP that acts similarly to patents.
2.  It shouldn't address things that are best address elsewhere.  (Such
    as non-patent-like IP issues.)
3.  It should be compatible with other similar but non-patent-related
    efforts, (such as Open Source code), so it needs to address them
    to at least that extent.
4.  It should be able to address patent issues as they relate to
    different industries, or be able to be extended to do so.

> Anyway, I hope this fits in here

I think it does.

Although I responded to a number of your points already in my rant
above, I do want to respond to a couple things in your forwarded mail
in context:

> -------- Original Message --------
> Subject: Free and Open creativity
> Date: Sat, 8 Jan 2000 01:34:05 -0500 (EST)
> From: "Arthur P. Smith" <apsmith@aps.org>
> To: bruces@well.com
> 
> I'm intrigued by your manifesto, in particular calling for designers
> and artists to stop thinking of their creations as property and start
> sharing them. I know this concept owes much to the open source software
> successes, but something very like this I think really derives from the
> way science is, or should be, done - the concept of sharing new ideas
> and discoveries to let everybody benefit, and to let others quickly
> build
> on (or falsify) your work is one of the reasons science has progressed
> so amazingly far in this century, leading to many of our new
> technologies
> in the process.

The basic idea of sharing inherent in the scientific method is at odds
with the notion of restricting the use of ideas inherent in patents.
Rather than having a (patent) system that attempts to promote progress
based on a granted ability to restrict ideas, we should have a system
that promotes progress by settign things up so that people tend to
benefit from sharing their ideas, inventions, and discoveries.  (I feel
that I'm hardly doing more than rewording what you say later on.)

> Since I work for a major scientific publisher we've been grappling with
> this concept of treating what we publish as intellectual property which
> we, the authors, and the whole community also feel should somehow be
> freely
> available and not locked up in the ways that "property" seems to want to
> be.

Information almost might as well not have been discovered if it's merely
locked up.

> And thinking about patents seems to bring a possible broader scope to
> the
> concepts suggested by your manifesto. Now that we have these wonderful
> new media for communication, wouldn't it make sense to replace the
> patent
> system with something that still rewards the creator for a creation,
> still
> rewards the inventor for an invention, but doesn't leave that
> intellectual
> entity as a piece of property which cannot be used by others without
> surmounting a barrier of fees and licenses?

[...]

> There are clearly a lot of unknowns in this. Where does the money come
> from
> to support these inventors and designers who are donating their
> creations?
> One way is to create a foundation that awards money based on the
> usefulness of
> contributions, supported in turn by the consumer level (manufacturing or
> service) industries that make use of these ideas. A lot more detail than
> this
> is needed - but I think it could possibly lead to a whole new economic
> paradigm: in addition to the manufacturing and service sectors, we have
> a "creative" sector that is at least partly funded through a (surely
> voluntary)
> tax on the first two.

Or financial derivatives:

2.  What if you could agree to pay anyone who provided a solution to a
    certain problem?
1.  What if you could also wager on whether anyone would in fact be able
    to provide such a solution under a certain price by a certain time, 
    (essentially doing stock-market type transactions on scientific and
    engineering questions?)
3.  What if you could place market and limit orders on (2), or
    trade futures in same?
4.  Given that the above helps quantify the risk of an individual
    investment, and that over a group of possible investments the
    aggregate risk could be known to a greater degree, that leads
    to the possibility of insuring against, (or for), technological
    improvements.

The above would imply that you could potentially insure that
technological improvements would lower your costs of having some process
done by, say 20% within 1 year.  You could go to an insurance company
and agree to pay them 5 of those 20 percentage points for them to insure
you against the possibility of the technological improvement *not*
happening.

If it does happen, you're out that 5%.  If it doesn't, they pay
that 20% for however long you agreed.  (The details don't matter;
I'm being sloppy with the wording of percentages anyway.)

The interesting thing is that if in this market so-called insider
trading is allowed, then the insurer would have major incentives to
purchase stock in solving the problem.  If they can effectively pay to
have the problem solved, (even if it's indirect or distributed, and even
if all they end up paying for is for someone else to point out to them
that the problem was solved ten years before), then they'll make money
on the deal, the information will be public, and the manufacturer will
have had more predictable expenses, as well as a greater likelihood of
having access to any other improvements went hand-in-hand with the one
that came about.

I think that's a much better way of promoting invention and discovery
than granting people monopoly rights.

(And I think it would be amazingly cool to have insurance companies
and stock brokers to be funding research and development.)

Here are two folks who talk about these sorts of ideas:

     Robin Hanson's Idea Futures, discussed at
     http://hanson.gmu.edu/ideafutures.html

     Marc Stiegler's Castpoints discussed in his book _Earthweb_, see
     http://www.skyhunter.com/earthweb/

 -Mark Shewmaker
  mark@primefactor.com