Saturday, July 5, 2008

New Media Will Challenge Intellectual Property Claims

New media allows each of us to publish our own works, with the illusion that we have copyrighted the material published. However, only the legally proficient will be able to truely establish an enforceable copyright. They know how to properly register the idea and define its scope, and also to discover and contest unauthorized use. Although, there is talk of a poor man’s copyright, “the United States Copyright Office makes clear that the technique is no substitute for actual registration.” (see Wikipedia Copyright)

Powerful companies are preparing defenses against accusations of copyright violations of other’s intellectual property. They are buying and building huge copyright and patent portfolios, and using them in marketing communications. Because of their skillful legal council, they have been able to gain ownership of very fundamental processes. This is especially true in the computer field. For example, Microsoft has patented the understanding of music (The Day the Music Died)

Subtle marketing communications will scare corporate procurement away from weak patent defenders to the strong. For example, in its public relations Microsoft contends that Linux has stolen and violated 235 of its patents and copyrights (see Fortune ). Corporate procurement now faces future charges of knowing violation of intellectual property protections and the ISO 19770 standards on Intellectual Property if they switch from Windows to Linux.

The Open Source community is intransigent in its position. Richard Stallman says software should be free. The community deftly argues that ideas in the computer industry are communal mathematics and should be treated as such (like Folk Art).

Microsoft parries Stallman and says that open source has been reckless with intellectual property. Microsoft has additionally formed a relationship with SuSe Linux and as part of that relationship, SuSe Linux now pays Microsoft royalties on the 235 violations (see Money Mag ), establishing a precedent, and undermining the other Linux vendors and the Open Source Community in general.

The Open Source community has been outflanked by a combination of marketing communications and partnering relationships, which one could argue are also part of marketing communications.

In the end, Microsoft is now accused of stifling Open Source with “patent warfare” see (Patent Colonialism ) Folk culture is indefensible because it cannot hire the marketing communications expertise to lay out effective strategy and legal talent to execute winning tactics. Powerful multinationals will own all human ideas and moralize that we, the great unwashed are ethically violating their intellectual property rights when we try any innovation by our lonesome.

The New Media will accelerate this confrontation by enabling the masses to publish. Many will wonder how you can patent the concept of music. The Open Source community understands the legal intricacies the powerful companies are employing and work within that framework. Not the masses. I suspect they will want common sense.


Unfrozen Cave Girl Marketer said...

Hi George,

I've been trying to wrap my brain around this virtually unseen and unfelt loss of copyright ownership for a few days. It is stunning to think that large companies have plans afoot to copyright shared human knowledge like the understanding of music!

My question for you is: what, if anything, could concerned people do about this? Is there a group we can join, letter we can write, vote we can cast, etc? (I'm an activist in the frozen depths of my cave heart!)

George said...

Hi Cave Girl,

I think we should use the social media that makes publishing wrod-wide almost free. The Patent and Trademark Office should publish all patent applications for Prior Art review on a public blog.

In the example of software, the Free Software Foundation could maintain watch and reply with connections of any patent claim to prior communal mathematics. An so could other groups for other areas.

As much as I admire Richard Stallman and the other in the FSF, they seem to get trapped and bogged down in the legal wording of the major corporations because they are familiar with such legal intracacies.

They also are only human and can only fight little skirmishes as the major companies make bold sweeps in other areas and around them. The Law of Many Eyes can help.

Unfrozen Cave Girl Marketer said...

That's a great idea! I can really see this working, since it's something many users could contribute to in their spare (or procrastinatory) time.
I think this needs a blog post of its own - maybe a kind group of engineers and authors can come together to form the nucleus of "The Law of Many Eyes."

George said...

Hi April

Someone scooped us: The New York University School of Law. They have sued social media to do just that type of prior art review. Here is a write-up of the project,+US+Patent+and+Trademark+Office

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