The Psychotic State Number 6 February 5, 1998 Intellectual Property Is Theft My psychosis never quite appeared during January. Perhaps it was the weather. I always try to do these once a month, but I was never sufficiently delirious until this week. Actually this particular rant is one I've been meaning to write about for quite a while, but the newspaper Monday morning spurred me to go off. If you saw the "Digital Commerce" column in the February 1 New York Times, you read about US Patent 5,851,117. This was a so-called "method of doing business" patent, issued last year to a company that had the clever idea of using an illustrated book to instruct janitors how to clean a building. There are those of us who believe that there is probably prior art in this field that goes back to the Sumarians, if not the cave paintings, but evidently the inspectors at the patent office somehow missed them. I do recommend you get the NY Times article - I'll give it to you if you can't get it - but this piece is not going to rehash it. (Though in the interest of keeping you up to date on the goings on in our industry I will note that the Times mentions that sightsound.com has a patent on the practice of downloading music across the web, and they're going after mp3.com.) There's plenty of hostility to the patent office nowadays, quite a lot of it because they seem to be in the mode of granting just about anything no matter how trivial or obvious. It's going to be a feast for the lawyers, as all the crap gets sorted out in court - if it ever does. My psychosis is a bit different. I hate patents even more than that. Even if it were possible to staff the patent office with people who had common sense and could read, I think that there's a more fundamental problem. As a nation we're extending the idea of intellectual property in numerous ways - for example the congress recently passed a law raising the length of a copyright from 75 to 95 years. I think we should be going in the opposite direction. I'm not against the notion of intellectual property altogether, but right now we're protecting it too much. A patent is essentially a grant of a monopoly. The holder of a patent is the only one who can do something, make something, or do business in a certain way. I'm just not a big fan of monopolies. They are very rarely good for society at large, and they usually aren't even good for the holder of the monopoly. Here's an example from history. We all know that Alexander Graham Bell invented the telephone. The following table indicates the number of telephones hooked to the Bell Telephone Companies, year by year. 1876 1 1891 220,000 1877 3,000 1892 240,000 1878 10,000 1893 260,000 1879 25,000 1894 260,000 1880 30,000 1895 270,000 1881 40,000 1896 310,000 1882 70,000 1897 350,000 1883 90,000 1898 420,000 1884 120,000 1899 490,000 1885 140,000 1900 670,000 1886 150,000 1901 850,000 1887 160,000 1902 1,110,000 1888 170,000 1903 1,400,000 1889 190,000 1904 1,680,000 1890 210,000 1905 2,010,000 1906 2,530,000 (These numbers are approximate. I'm trying to read them from off a graph. It's on p170 of the book "Alexander Graham Bell: the life and times of the man who invented the telephone", by Grosvenor and Wesson.) You can see something pretty big happened about 1895. All of a sudden, the numbers really shoot up. (This is even more apparent on the original graph.) Actually, there's no mystery as to what went on: patents lasted 18 years, and Bell's expired in 1893 and 1894. With the patents in force it took Bell five years, from 1890 to 1895, to raise the number of phones by a mere 30%. During the five years after the patents ended Bell more than doubled its phone service. And the five years after that saw a threefold increase. The company did this because it was suddenly pushed to compete with independents - aggressive startups that targeted new users. Bear in mind that even in 1906, the market was far, far from saturated - Bell only had one phone for every 33 people in the country. But only one of about 300 had a phone back when there was a monopoly. It's hard to see how the patent system was serving the 299 people out of 300 that Bell didn't see any reason to bother with. What bugs me about patents is this. There are really very few fundamental insights. The people who have them rarely seem to succeed in getting them patented, or at least they seem not to be able patent them in such a way as to really get the protection they need. So the people who get the monopolies are those with the best lawyers, who make some minor, often obvious, refinement and use the courts to keep others out. For example, the word processor was invented by a fellow named Michael Shrayer, who wrote a program called the Electric Pencil in 1976. (Read the most excellent book "Fire In The Valley: the making of the personal computer", by Freiberger and Swaine.) If there was a real step forward in computing, it was Shrayer's, everything afterwards was just dotting i's and crossing t's. Did Shrayer make millions? No, not at all. Whatever patents exist today on word processing, they didn't go to the guy who invented the idea. The same thing happened with the spreadsheet. The first one was called Visicalc, and it was written two fellows named Franklin and Bricklin for the Apple II. Today, most of the bucks being made from that idea are going to someone named Bill. Don't get me wrong - I'm not saying that the world would be a better place if the only person we could buy a word processor from were Michael Shrayer, quite the contrary. Had that been the case, probably only one in 33 of us would be using a word processor now. (Though come to think of it, at least our machines would be free of the Microsoft Word virus.) No, the point is that we seem to be trending toward protecting "innovation" far in excess of any possible benefit to us as a nation, and totally out of synch with the actual people doing real innovating. Many people approach this question as though there were some fundamental human right to having one's intellectual property protected. This is wrong. The only reason to give anyone a monopoly on an idea is to serve the common good by making the implementation of ideas profitable. The figures above make it pretty clear that extending Bell's patent wouldn't have made him innovate more - quite the contrary, the patent protection kept phones out of the hands of millions and probably _prevented_ others from improving his device. Having a patent for _some_ length of time, on _something_ was good for Bell and probably for the rest of us, but strengthening the rules of intellectual property, to allow Bell to keep others out for even longer, would be bad. Unfortunately, that is the road we seem to be heading down today.