.comment: A Moderate Approach to Intellectual Property

By: Dennis E. Powell
Wednesday, July 11, 2001 01:08:05 AM EST
URL: http://www.linuxplanet.com/linuxplanet/opinions/3599/1/

"Mom, the Germans Are Doing It Again . . ."

It has been argued, not without evidence, that anytime Europe makes it an entire generation without destroying itself in intramural warfare, it's soon to indulge in the kind of mischief that prods the overdue conflict into existence.

But warfare comes less and less in the form of people with guns and submarines and cannon killing each other and breaking their stuff. Today's battles are increasingly economic ones. Like the battles of old, the combatants play for advantage, choosing the battlefield where they have the best chance of winning. Those battlefields are determined by venue shopping, in the case of class-action lawsuits, and by, now, country shopping, as in the case of Adobe v. KDE.

Under the current German system of laws (called, one might think from this case, Reich 3.1), lawyers get to bring what amounts to suit against people in behalf of people who have not authorized them to do so. They then get to bill not the plaintiff but the defendant for their efforts.

We've had a German lawyer employ German law to enforce the American trademark of an American company. The company, which named itself after the chief ingredient of many of the world's finer mud huts, has trademarked the perfectly ordinary word "illustrator," perhaps in the belief that this will give it some advantage against the vastly superior Corel DRAW!.

The victim of this collection of absurdities -- a/k/a the defendant -- is a German university, on whose web page appeared information connected with KIllustrator, the vector graphics program that is part of KOffice, the KDE office suite.

It's obvious that we can criticize Adobe for filing for a trademark that is ridiculous, and the U.S. government for granting it, and Germany for having ridiculous laws as to the enforcement of trademarks, and the whole system in which a word constitutes "intellectual property."

To stop there would be to miss the point, and it's a point to which all of us to whom Linux matters would do well to focus upon. The title of this section is in quotation marks because it is exactly the kind of response that does no good, yet to which it's easy to be drawn.

The Columbia Law School professor, Eben Moglen, could well be a powerful moderator and representative of views held by many of us, but, frankly, anyone who writes monographs with phrases like "the death of copyright" in their titles has already staked out a position so uncompromising that it's difficult for anyone but his own little cheering section to take his work very seriously. Intellectual property is a good thing. Without it, the incentive for writers to write would all but disappear, except for very bad writers of whom there are many. Americans (and others who have interest in American literature) need look no farther than Mark Twain's writings on the subject. The death of copyright would be cause for general mourning.

The theory is that writing -- including the writing of software -- is like scientific advances: It has an inevitability; if I don't discover it today, you will tomorrow, and therefore my discovery today oughtn't be mine. (Whether this theory holds up, whether the supposed inevitability exists, is highly questionable, but let's let it pass for now.)

So it is said, too, of patents -- all discoveries are destined to be made, so the first person there oughtn't be rewarded.

There's a terrible flaw in all this, though: It's manifestly wrong. The profit motive, as codified by intellectual property ownership, is the reason in many cases why research and development were undertaken to begin with. I know (to the extent that I have interviewed him on a number of occasions) a brilliant fellow who discovered on his own a broad-spectrum, nontoxic antibiotic that would eliminate whole classes of protozoan and bacterial infections for which, until his discovery, there was no effective treatment at all. What's more, he came up with a way to synthesize it for $4 per pound. A pound would treat hundreds of people. Pretty cool, no? No.

He developed all of this while in government employ, meaning that his work is in the public domain. Bringing a drug to market involves jumping through approval hoops costing, on average, $500 million. Yes, half a billion dollars before the first pill gets distributed. But, because the formula is in the public domain, any company going to the trouble to get it approved would be instantly undercut by another company, without the huge overhead, marketing the now-approved drug at just over the next-to-nothing it costs. The effect? Nobody is even trying to get approval, and the world is denied a very cheap and enormously effective drug -- because its formula is available to everyone.

Yet this compound is so effective for so many ills that, were it privately developed and the rights to it therefore privately owned, the amortization of the development and approval costs would be little per dose -- and it would be available, which it isn't now.

So the issue of intellectual property rights isn't as black and white as the tub thumpers would have us believe.

From the Sensible to the Ridiculous

Intellectual property takes, basically, four forms: copyrighted works, patented inventions, trademarks, and trade secrets. All of them figure in computing.

For instance, BIOS information is usually kept secret. This began when it was not known that computing would advance as rapidly as it has (there was an internal study at IBM that said that for the entire life of the industry, only 250,000 PCs would be sold). Of course, the classic secret is the recipe for Coca Cola. It is not patented or copyright, because those things expire and the Coca Cola Company would like to stay in business forever.

The other three classes of intellectual property have in common that they can be licensed. The holder of the copyright, patent, or trademark can specify the circumstances under which a particular piece of intellectual property may be used. Software is typically copyrighted and licensed to users (even the GPL is designed to provide the terms and conditions of use of copyrighted material; that's why the L stands for "license"). In the good old days of a decade or two ago, patents typically (though not always) were matters of hardware; the user would not be governed by license provisions (you could, for instance, use your power supply not to juice up your motherboard but to electrocute the guppies, if your tendencies were in that direction, and the patent holder would probably wish you no ill unless you decided to market power supplies for that purpose and didn't obtain license to the patent first), but a secondary manufacturer could obtain license to build the patented item or to build something based on the advance covered by the patent. Trademarks are (or were, again in the happy days of yore) means whereby a company identified itself and its products; these are licensed to people who typically wish to establish a business under a degree of supervision by the trademark holder, in exchange for gaining the reputation and recognition that the trademark brings.

All of this is perfectly reasonable. People who go to the trouble of creating something by all rights ought to have a say in what becomes of their creation and, if it's the kind of thing where there's money to be made, enjoy some or all of that money. (Not all intellectual property has much value; arguably, the vast majority doesn't, but that surely shouldn't diminish the creator's rights to it, just the likelihood that anybody would try to steal it.)

The problem has come not in the area of secrets, which if kept are pretty well absolute, or copyright, which is straightforward, but in the area of patents and trademarks.

There are places that are virtual patent factories. I don't mean to be picking on IBM, but it is surely one of these -- IBM applies for more patents daily than most large companies do in a year. And while there are many IBM patents that clearly represent huge advances in technology, there are also many that most of us would probably find to be very minor advances. Even so, there's not much griping to be done, because tangible improvements are being made, and from that we all live marginally better lives, or so the argument goes.

It's in the area of things like web design that one has to wonder if the patent system hasn't maybe gotten out of whack. When a company can patent the number of clicks it takes to place an online order, there's trouble. And that is not the most egregious example available.

Then we look at trademarks. Companies that ought to know better are trademarking ordinary words, and the U.S. government, which ought to know better, is allowing it, and other governments, which ought to know better, are allowing it to be enforced by whatever pecular means local custom dictates.

U.S. law requires that trademarks be vigorously protected, lest they fall into common usage and lose their brand-specific meaning. The classic example of this is Xerox, which for a time took out advertisements and which may still send letters to transgressors who commit their offenses in print, explaining that Xerox is a company name, not a generic term for photocopying. (The brand must be protected. Remember, Xerox is the only company that developed the precursors -- pun intended --of the modern graphical user interface and then failed to capitalize on it. The result is other companies raking in billions while Xerox has fallen to the extent that one upstate New York restaurant will give you a steak dinner for a share of Xerox stock. Perhaps it would have been good to protect the company itself as vigorously as its trademark has been.)

What happens, though, when the trademarked word is not a company logo or a unique, synthesized word, but instead something already in common, non-trademarked usage? Though not uniquely the realm of software companies, this kind of thing has found a special home in that industry, which is wont to give its companies and products goofy, unhelpful names. Years ago, those who heard of Lotus Development Corp. for the first time would not have been unreasonable in supposing that it was a company that supplied blooming water plants, and that Lotus 1-2-3 was perhaps its brand of fertilizer. This phenomonenon was not clarified by advertisements, as typified by the Wang television campaign in which the camera panned spastically around the room as people you never quite saw mumbled technogibberish; you never did find out what was being advertised.

We have Red Hat, which means nothing computer-related, Caldera, which means "crater," a term now seen as appropriate only by holders of the company's stock; Mandrake, a medicinal root that is said to scream when pulled; and Slackware, which is just kind of offputting. Debian, as usual, goes its own way, having an actual meaning -- its founder, Ian Murdock, and his wife, Deb -- form together a word that is both unique and appropriate to the kind of following which that distribution has engendered. ("Good day, brother. Are you a Benedictine?" "No, I'm a Debian.")

We have products like Adobe Illustrator, in which two commonly used words suggestive of dirt buildings and Norman Rockwell are taken as proprietary by a company that has done some good things over the years, though naming and trademarking are not among them.

The result, then, is situations like the one that popped up involving KIllustrator. They deserve our calm attention, because the current method of dealing with them, as exemplified in the instant case, is unsatisfactory.

Can Reasonable People Act Reasonably?

Lawyers can no more be characterized than software developers can. There are good ones, bad ones, and all that's in between. We can, though, observe accurately that lawyers more than anyone else shape the laws of nations. This means that in many respects laws are drawn from the lawyer's perspective.

We are facing broad new challenges, what with the Digital Millennium Copyright Act, the World Intellectual Property Organization treaties, the advent of the European Union, and the attempt, such as it is, to mortise existing national laws to these vast changes.

Rightly or wrongly, the free and open software movements have gained a reputation for militant opposition to the very idea of intellectual property. The result is that our voice is deemed to be so loud that it cannot be heard over its own noise. We are in many respects ignored, when we have in fact useful things to say and might be heard if only we dropped some of the Maoist fervency.

We have in many respects taken the tone that we are above, or at least outside, the market forces that govern other software products and that we therefore can -- forgive me, Adam Smith -- give the market the invisible finger. But the world that exists is the one in which we have to live and work, and right now things are not going our way in the intellectual property side of things.

It is as ridiculous for us to argue that there should be no such thing as intellectual property as it is for Adobe to trademark the word "illustrator" and for some German law firm to go picking on an innocent university. Abuses and unreasonable activity can be dealt with on an individual basis, without the attempt to bring about sweeping changes. The fire truck that enroute to a fire runs over a child provides no argument for the elimination of fire trucks, though it does suggest that fire truck drivers, parents, and children ought to pay attention to what they're doing.

Likewise the Adobe v. KDE issue. If there were a problem (which I doubt; no one in the world would confuse the KDE program KIllustrator with the Windows program Adobe Illustrator, anymore than people confuse KWord or AbiWord or Word Perfect or Word Pro with Microsoft Word), it could easily and happily have been solved by a simple letter from Adobe, or for that matter an email to the KOffice development mailing list, saying, "Look, we have to protect our trademark, and that means we need to object to the naming of KIllustrator. We like your work and applaud your efforts, but please -- how about calling it something else? Our legal department says that we'll have to press this, but we'd rather arrive at an amicable solution." There would have been some grumbling, but it would have ended in KIllustrator being renamed. The company would not have lost the goodwill that it lost when the loose cannon lawyer set about squeezing money out of the university in the name of Adobe.

In any society, there is an underlying reliance upon sensibility and civility. This becomes all the more crucial as commerce moves increasingly to the international stage. The recent debacle involving the merger of two American companies, General Electric and Honeywell, in which the European Union provided a veto (while continuing to subsidize EU companies), demonstrates some fierce cultural and legal issues that will need to be sorted out. Adobe v. KDE is a smaller symptom of the same problem.

We'll not take our part in resolving them by denouncing intellectual property, or by denouncing Adobe, or by denouncing all lawyers or even all German lawyers. There is room to make all kinds of noise about the specific provision in the German law that allowed this to take place, and room to pressure Adobe on this particular issue. There is room to lobby for "good faith" amendments to the law, such that a company must inform anyone alleged to have violated a trademark who in turn would have the opportunity either to challenge the claim or remove the offending material before lawyers start sending bills. There is certainly room to campaign against venue shopping of all kinds, before the idea of country shopping becomes established.

Calm voices who have gone largely unnoticed have been saying for several years that the next war will be a commercial one, with the wired world at its center. Intellectual property is likely to be a leading weapon in that war, and to say that the notion of intellectual property is evil is to be both factually and tactically wrong. The dispute involving Adobe should serve as warning that we cannot simply sit back and wait for the war to happen, and then conquer the world once the smoke has cleared.