On IP, the Universe and everything

I'm getting old or something, because I seem to rant more an more. Much of this text is contained in an e-mai sent to the .NET Rocks podcast regarding their OOXML show, but I thought it might be interesting to publish it here to clarify my views on IP, OSS, the universe and everything :-)

Two more things I would like to say before I get into the rant: .NET Rocks is great, great show. Just listen to this episode about good UI design if you want to get a taste. Also, here is a (somewhat) related article on the artima weblog about why one does Open Source development which are agree with whole heartedly. One thing I would like to add (to the artima article): if your company uses OSS and you discover a bug, contributing the patch back means that you (hopefully) don't have to re-fix the bug when you decide to upgrade to a new version.

<rant on>

I have a love-hate relationship with Microsoft (and by extension other things related to the MS Universe like Windows or your show) and the last podcast (Politics of OOXML) definitely pushed it towards the hate side of it. Please, please for sake of all that is good and beautiful in this world, stick to tech-topics and leave the politics out. While I believe that everybody should have a right to express her or his opinion, one-sided discussions like the one from the podcast make me want to yell very loudly at least.

Your guest was possibly the worst person to discuss this issue, because he is (from what I can tell from the bio) a tech-journalist (ok, he dabbled in SmallTalk, but that doesn't make him a technical person). IT has many, many intricacies which people who think they understand very often get wrong. Also, he is a member of Association for Competitive Technology which sound nice, but who pays his salary? You don't know (or didn't tell on the show!). If you visit the site of ACT and you click on the Members link, it tells you how to become a member not who the members footing the bill are! But still I would hazard a guess and say that MS is a member.

Later correction: I managed to find the member list (thanks to Google, no thanks to the site!) here: http://www.actonline.org/na/about/members.html, and surprise-surprise Microsoft is a member while Sun and IBM are not. How can you even think that a person who is payed by MS but still pretends to be independent (because he doesn't disclose his relationship with Microsoft) can give a balanced and at least somewhat accurate view of the issues? Its worse than having a MS PR person on, because there at least the bias is clear (although you couldn't miss that in the interview either. the three of you giggling together: the EU fining MS x dollars, what's that about? - it's about wanting to do business in the EU). He was a wolf in a sheep's clothing (hope I got the expression right).

Your whole discussion revolved around bashing other companies and putting MS up on the pedestal. All that was missing was the three of you singing "MS can do no wrong!". Lets face it, public companies (like MS) are motivated by the profit and will do anything for the profit (thats not saying that other companies are better, it's just saying that they are no worse). And make no mistake, Bills philanthropic (although great) effort don't change that. He gives that money from his own personal stash. MS could never give that kind of money, because its shareholders would hang the management! (or fire them at least).

And finally, your discussion about Imaginary Property! This is one of my hot-button issues (recently I wanted to yell at Charles of Channel 9 when he was interviewing Miguel de Icaza and ask something along the line of "but doesn't MS have to protect its intellectual property?"). IP is basic misunderstanding of lawyers and economists the way the scientific process works. (I've heard a story which I think describes this well, stating that the e-mail is a very good reflection of the scientific process, where you can quote other people - when replying - and you can argue their points one by one and if it would have been invented by lawyers you wouldn't be able to do that because "it infringes on copyright"). To get back, there is no such things as IP! It is an expression meant to confuse the issue by lumping three different things into one category and then making the argument "if A is IP and we agree that A needs protection, then IP needs protection and B (because it's IP) needs protection". To get a little more concrete, the three things are:

1. Trademarks - which are reasonable to enforce to avoid confusion and counterfeiting.
2. Copyright - again, reasonable as a principle, not reasonable as the length of the protection (90+ years - but hey, I like Mozart :))
3. Patents - this is the most dubious one, especially in the area of software patents. The naive argument (again, I have to mention Charles who - in a recent interview, sorry for not remembering which - said something along the lines "you have many patent cubes, that is great") is that I got this idea, I should be able to profit from this. The two (very convincing in my opinion) counterarguments are: you can already profit from it by implementing it and selling the implementation! (which - the implementation - is protected by copyright!). Also, there aren't an original ideas. I claim that nobody has came up with something from nothing. Every algorithm, idea, and so on is an extension of an existing idea with some addition, or a combination of multiple ideas from different fields and so on. (Computer) Science doesn't advance by "pure genius", it advances by building on the work of others (as Einstein said: "science is 1% inspiration and 99% work").

Imagine what would happen if some of the most fundamental ideas (like linked lists) would be patented. You might say but this is elementary, you can't patent this. Making abstraction from the fact that it seems these days that you can patent anything, here is a better example: b-trees. They are fundamental, can be found in every CS textbook, but are by no means "simple", "intuitive" or "elementary" until you studied them. Patenting them would have meant the death of modern databases, because it is the fundamental algorithm for indexing.

So keep in mind: every time you perpetuate the myth of Immaginary Property, an SQL Server dies!

As you can see, making the argument that trademarks must be protected, trademarks are IP, thus IP must be protected and thus patents should also be protected is a fallacy at best and sneaky and malicious at worst!

Sidenote: there is one more concept which sometimes gets lumped in the category of IP: trade secrets.

PS: You mentioned that people complained that the MS standard document (with recards to the MS Office file formats) was too detailed. I don't know who you were referring to, but (AFAIK) the general consensus seems to be that MS provides too little or too vague descriptions and many descriptions are inherently bound to its products (something along the line: if this field is set, rendering shall be done the way MS Word 6.0 did it, but failing to speficfy how actually MS Word 6.0 did it)

<rant off>

If you want to get more details, you can watch the video below from patent attorney Stephan Kinsella (found it via Slashdot / Techdirt). The actual sessions is about half an hour long, the rest are question and answers. For more interesting and insightful articles, check out all the articles tagged on techdirt with IP.