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A proposed solution to the crucial Amazon patent issue

Mar 27, 2000, 18:26 (6 Talkback[s])
(Other stories by Eric Laffoon)

[ The opinions expressed by authors on Linux Today are their own. They speak only for themselves and not for Linux Today. ]

I realize this is a little long, but it is comprehensive in order to conclusively make my point. I hope it is helpful in mobilizing and motivating us to make a difference.

Everyone but the patent office knows there's a problem here

Jeff Bezos is moving in the right direction saying we need patent reform, and he is also clearly demonstrating the potential flaw in corporate thinking. While it is undeniably right for him to look out for the best interest of his shareholders, the Justice Department's case against Microsoft is based on the premise that they are unduly harming others and the market in the interest of shareholders. Jeff is right about two things. First, it is impractical to suggest they drop their patents. After all... the patent office will obviously issue these patents so it would be completely unreasonable for a business to abandon them for someone else to turn against them. So the second point is that clearly patent law needs reform.

I would go farther than what Jeff Bezos says about his concern for patent law potentially harming Amazon. I believe that if patents on the web become a problem his company will forever be remembered distastefully as the one that opened Pandora's box.Obviously this bears some intelligent review and people will disagree, but I have an idea which I believe should be be adopted and if it isn't we will all suffer. Having said that let me prove my point. First let's consider the framework of the internet and it's importance to our society. Then let's put the patented application in context with patent history and the current circumstances and vehicle of it's use. Finally let's draw our conclusions.

The internet framework and social significance

I know some people may say, duh, I know about the internet, but I would like to make a point. If 10 years ago I had told you that there would be a network that people could log onto that would have the kind of traffic and commerce statistics the internet has today you would likely have thought I was nuts! If I told you it would be free... then I would surely be headed to the rubber room. I encourage everyone to think back. Dial up network access and bulletin boards have been available several times as long as the internet. The most successful vendor has been AOL and look what they had to do. They became an internet portal. Why? Clearly the internet has already been the most astounding growth successes in technological history. I believe the reasons for it's success are as clear as the reasons for it's existence. The internet started in the late 60s, was made publicly available in 1992 and took off in '93 and '94 with the advent of the web browser... based upon an open and free technology. The internet grew because it was open and free! I defy anyone to dispute that! Internet sites could be freely accessed by anyone on any computer. Anyone could post anything, with obvious limitations to free speech like copyright. Moreover every web page on the internet exposed, and continues to expose it's source to the public.

I believe it is too early to tell the overall impact of the internet on society, but I refer you to history to attempt a benchmark. The written word began history. Mathematics began civilization and engineering of structures. Movable type ended the dark ages! Imagine being put to death for owning a bible in England in the 1500s? The industrial revolution began along with the telegraph and went full swing at the time of the telephone and radio... the television has so dramatically shaped society as to consume nearly as much of the average American's time as sleep and work. How much impact has the television had on society in the last 50 years? One example is how we now see war. Television has reshaped us in what we consider acceptable losses, and it has even drawn us into wars.

The internet goes far beyond all other mediums. It provides more immediacy, the key to information advance. It also has the advantages of individual control of information and unlimited access. Finally it provides, currently, an open playing field where anyone can contribute and compete. This is crucial because the internet actually is a paradigm shift from large centralized control of broadcast information (or the metered access of long distance)... and that information control is crucial in driving the masses to the benefit of powerful entities. The internet, by it's openness, provides an opportunity to impact society in ways we can't imagine yet, and to a greater degree than any technology development in the history of man!

Patent law intent and purpose

It should be clear why patent law was invented. It was to protect the investment of those entities that did the research and development to provide a product to the consumer. It was to assure that if they invested that labor they would not have their reward usurped. In this regard it looks on the surface as if Amazon's patent is legitimate. So why the upset? Well, let's consider the factors. Was there protection needed for Amazon to risk the development of these technologies? That is a question that is difficult to ask with a straight face. We'll come back to it. Does it in fact provide protection to Amazon? As Mr. Bezos himself admits, it provides little protection. However I have a substantially bigger problem with software patents on the internet.

I can see patenting a part for a car. This is something where a tangible product is produced and it exists regardless of the existence of the car. A car is a vehicle designed to make a manufacturer a profit so it is a sound context. However if you try to patent an adjustment on a car I would think that would be a problem. Amazon's patent issue is much different in context though. Let me explain why.

  • Amazon is not patenting a product or even a component of product, but an adjustment of the application of products. Those products being made of HTML, CGI, servers, etc... Essentially Amazon is not patenting a part of a car, but a part of a roadway... a public roadway.

  • What Amazon is patenting does not exist in the classical sense. The components that were made freely available are all substantially more involved in the execution of the operation of this process than what is patented. What Amazon has patented is but a microcosm of what it actually does. So if for instance if CGI were patented Amazon's patent would be moot. Nothing could illustrate better the folly of applying 19th century patent law to 21st century communications.

  • Amazon is patenting directions in an open source environment to insure that others cannot issue the same directions. While it seems that there is nothing illegal about this today it is unquestionably in conflict with the principles that have allowed the spectacular development of the internet.

The consequences of the Amazon experiment

I believe in inflating to the ridiculous because in the end things always end up ridiculous. What is the potential of this? It is all too clear. As new technologies, the inevitability of the internet, are introduced, and I'm talking real ones, not Amazon ones, they will be patented. What does this mean? As bandwidth and technology improves patents will begin to enforce who can deliver content on the internet. Imagine if someone held a patent on cable TV? Instead of the internet delivering more diverse content it will gravitate to centralized control. New costs will be introduced and pay service could return to dominance. Small companies with patents will become takeover targets for big money... technologies could even be killed. Who would do that? Amazon is a perfect candidate. Several years from now as they are looking to begin showing a profit increased bandwidth and new technologies could drive web development costs through the roof! Who wants a bland page when they can talk to the cyber-clerk, a real time AI creation that makes one-click look like tedium? Amazon could develop it first and bury it, to prevent it from being used, and thus save themselves a fortune.

Now I ask you reasonable reader? Could this have been the intent of patent law? It gets worse too. Should there be any success with internet patents we can expect rogue states to produce sites in violation. I imagine illegal web-casts would attract big dollars from off shore advertisers. This could create a shift in talent and resources from US markets... but it gets worse... since the companies holding the patents are dealing in big money and influence there is substantial pressure to have congress enact a new internet policing act. Do you know where your IP packets are? What will the neighbors say when the ATFIPE (Bureau of Alcohol, Tobacco, Firearms and Internet Patent Enforcement) raids your house for watching an illegal web-cast? Everybody does it? Of course the solution is greater world power from centralized control... big brother puts the squeeze on.

The ramifications of what we do now will shape the world in ways we can't begin to predict... just as we could never have predicted where we are today just 10 years ago. Bad things do come in threes, patent law precedents, Digital Millennium Copyright act and UCITA are all attempting to battle the the opportunities for new wealth and freedoms by legally regulating and decreeing that power is to be protected for the powerful. I suggest the power for a better world lies in the individual...

A proposed solution

To my mind the solution is obvious. The open nature of the internet is to crucially important to society. In effect the patent process on the internet does not encourage robust development of new benefits for the end users. It does not empower the common man to rise up in the world. It does exactly the opposite! It provides for corporate entities with the where with all to stifle the very development it would attempt to promote.

The only place patents should be able to be applicable on the internet is when they can 1) exist outside of the vehicle of the internet, 2) do not exist solely for the purpose of use on the internet and 3) demonstrate some actual investment in engineering such as algorithms, hardware interfaces or some application or language code base.

I believe the law needs to state clearly that the internet is an area of open and free use and that patented directions on public roadways are not allowed. Now what you do in private is a different matter. If an entity has a password protected area not for public use that they wish to apply for patents for, that is worth some consideration. I believe that companies are going to have to face the reality that the internet levels the playing field and in order to keep our business they must exist solely on their ability to innovate. Isn't innovation the thing that makes our lives better? Isn't innovation the very thing that has created economic growth and creativity? Why should we stifle it? In trying to make the new paradigm of the information age fit the old one of the industrial age today's dinosaurs could very well try to divide up the goose that lays the golden eggs...

I submit that if we don't restrict the patent process on the internet than the loss to our civilization will be incalculable and future generations will remember us as fools. I believe the vitality of innovation, commerce and society are dependent on open and free access for new blood to invigorate and challenge. I do not wish to enter what will be called centuries from now the new dark ages. At stake here is our very freedom and perhaps one of the most important decisions in history.

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