Joel Spolsky is ramping up the fight against patent trolls, the scourge of small companies and startups trying to advance technology in new and interesting ways. Sadly, while Spolsky is right on the money on everything, and even though the fight has to start somewhere, I think he – and others – are doing the industry a huge disservice by focussing entirely on pure patent trolls, without actually addressing the other side of the coin: medium and large business engaging in the same patent troll behaviour.
Spolsky details the despicable and unethical behaviour of patent trolls very well – behaviour we are all all too familiar with by now. Buy a patent and mail a letter that isn’t quite extortion but comes close enough to it to small software companies all across the country. Now the trolls sits and waits, as thousands of lawyers advise the small software companies to just pay up, since a court case will be far more expensive.
“What does this sound like? Yes, it’s a textbook case of a protection racket,” Spolsky notes, “It is organized crime, plain and simple. It is an abuse of the legal system, an abuse of the patent system, and a moral affront.” A common misunderstanding among modern sheltered westerners: just because it’s legal doesn’t mean it’s just.
Spolsky takes it all a step further, and turns the spotlight on those who actually do cave in and pay up. I’m a bit torn on this one – I fully understand a small company opting to avoid the courts – but his point is certainly a valid one. Namely, that by giving in and joining the protection racket, you are actually funding the mafia practices of this lowlife troll scum.
In the face of organized crime, civilized people don’t pay up. When you pay up, you’re funding the criminals, which makes you complicit in their next attacks. I know, you’re just trying to write a little app for the iPhone with in-app purchases, and you didn’t ask for this fight to be yours, but if you pay the trolls, giving them money and comfort to go after the next round of indie developers, you’re not just being “pragmatic”, you have actually gone over to the dark side. Sorry. Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.
Spolsky lists a number of ways small developer can band together and fight patent trolls.
The organised fight against these trolls has to start somewhere, but as is often the case in discussions like this, the medium and large players are excused from everything, even though their actions and behaviour in relation to patents is more destructive than that of the small trolls, and actually legitimises the behaviour of these small trolls. If Nokia and Microsoft may run protection rackets, why can’t a small troll?
Only early last week did I detail how large companies with huge profits and loads of products – like Nokia, Qualcomm, Huawei, and others – abuse standards-setting processes to extort patent licensing money. All of us are also aware of Microsoft’s despicable mafia practices with regards to Android (“Nice phone business you got there. Be a shame if something happened to it.”), which it uses to conveniently make sure Android costs about the same to ship as a Windows Phone 8 license.
Motorola – now owned by Google – used its standards patents in legal action as well. Then there’s Apple, who abuses the lowest forms of patents, software and design patents, to bully competitors, such as Samsung and HTC, in such a way that phones with keyboards now infringe upon iPhone design patents – leading to the absolutely ridiculous situation that phones released years and years before the iPhone could now technically infringe upon the iPhone’s patents.
It’s not just large companies – medium businesses engage in the same patent trolling behaviour. Remember the case of Maya, the four year old unable to speak until her parents discovered they could communicate with their daughter through an iPad application called Speak for Yourself? Yes, said iPad application then came under attack from an incumbent competitor, causing Maya to – almost literally – lose her voice, as the application was pulled from the App Store.
I see zero distinction between the behaviour of these medium to large companies and that of patent trolls. In fact, it’s worse – these large companies actually influence government policy the world over, have the money to fight out huge legal battles and crush any competitor willing to challenge them by throwing loads of patents against the wall until something sticks, and, to make matters worse, their behaviour legitimises that of the small trolls.
I would take it all a step further and argue that attempting to fight small patent trolls and trying to get laws enacted or changed to try and counter their behaviour is only going to make things worse for small technology companies. By neutering small patent trolls, you are bound to also reduce the combat effectiveness of legitimate small businesses – and thus making it harder for them to fight the Nokias, Qualcomms, and Microsofts of this world. It shouldn’t come as a surprise that these large companies are calling for reforms to limit patent trolls – they know damn well this will negatively affect legitimate small businesses as well.
I greatly value that Spolsky – a well-known and accomplished figure in the technology industry – is fighting small patent trolls, and he’s obviously a great asset to have on the right side of the fight. However, I’m afraid that by focussing entirely on small patent trolls, we’re only going to make things worse. We need a change in thinking not from the little guys, but from the big guys. Sadly, the Apples, Microsofts, Nokias, Googles, and so on, of this world have little to no incentive to fight the status quo, since they stand to lose the most.
Our current IP regime is a stone around the industry’s neck, and with the large companies digging themselves in, it’s only going to get worse. Focussing on the little guys first could indeed be a good start – but we’re going to need more. A lot more.
Startups are sitting duck if a competitor wants to take them out. They don’t even need a solid case, the startup doesn’t have any patents (it takes 4 years to get one) and almost certainly doesn’t have enough money to fight in court. And unlike the patent trolls who are mostly after the money, the competitors wants them dead.
One such example is how Aureal got bankrupted by Creative Labs:
“Creative Labs sued Aureal for patent infringement… After numerous lawsuits Aureal won a favorable ruling in December 1999,[1] which vindicated Aureal from these patent infringement claims, but the legal costs were too high and Aureal filed for bankruptcy…Creative acquired Aureal’s assets from its bankruptcy trustee …”
That’s more of a problem with the court system. In many other countries, Creative would have had to pay all legal costs, both their own, and also Aureal’s. With additional fines, which would be enough keep Aureal afloat.
Unfortunately in US, the one with the more money can easily win, by exhausting the resources of the other party.
Edited 2013-04-03 15:12 UTC
“That’s more of a problem with the court system.”
Can I repeat the phrase in the article.
A distinction without a difference
Too bad Aureal itself wasn’t a very exemplary company… http://en.wikipedia.org/wiki/Media_Vision#Financial_scandal (and what possibly contributed to its second bankruptcy, as Aureal, investors being cautious)
Edited 2013-04-06 14:58 UTC
Big business bought off the government so the rules of the game would favor big business. Targeting big business by itself will not fix the problem. Getting big money out of politics will. When politicians actually have an incentive to work for the people instead of big business things will change and not a moment sooner.
Edited 2013-04-03 14:39 UTC
If money/being bought was the main problem in politics, it would have been solved long ago.
The biggest problem is who are ‘the people’.
People like to think if the government could learn to take care of ‘the people’ then we’d be treated better.
In reality, there is no such things as ‘the people’. We all have different wants and needs and the government is just benefiting and taking from different groups at a time.
Just how would the government do better at patent laws if it wasn’t being ‘bought by big business’.
Getting rid of patents? how about the millions of people employed at such companies… are they not part of ‘the people’. How would they react to something that decreases their job stability and company performance?
How about investors and pensions funds? Do they not help ‘the people’ as well. They need money so the rich can get richer and regular people can have a retirement? Some patent trolls are public companies.. and many large companies provide decent stable investments.
And how the lawyers? Are they not part of ‘the people to’. They also need money… and I’m sure they can also go on a great moral tirade about the righteousness of intellectual property. Heck, I once watched a show on TVO – the agenda (Canada’s non profit like PBS) and in response to questions competitiveness, intellectual property was mentioned as a big part of it. We need to protect our intellectual property so we can sustain profitability… so other countries can’t just ‘steal’ our technology. Wait, now we’re talking international free-trade.
And how about all the developers and engineers who just want a decent stable career. They’re not one of the lucky ones working for a startup potentially sitting on a goldmine. They want a job like the other 95% of society… just in their field. Don’t they count as part of the people too? And a big company with a stable patent portfolio to ‘extort’ their position helps them do that.
And yes, how about all the innovators just wanting to advance technology? This peculiar group would probably want to get rid of patents… but how many of these people are there compared to the rest of the groups above?
You’re probably right that the game is rigged. The problem is that it’s not rigged because big business bought the government… it’s rigged because we the people are our own diverse special interest.
Yamin,
Well, to be fair we’re not opposed to all protections, however I think you’ll find most software developers will prefer copyright over patents because it doesn’t block anybody’s path the way patents do.
The reason is simple, copyright infringement cases are open and shut. if you implement your own code, your not guilty. With patents we can infringe regardless of whether the work is our own, which is why we hate them.
Thom, I agree with every word you said.
I agree with the sentiment, but personally I think there are important differences between true “trolls” and large and medium businesses who partake in this behavior, even though the “racket” is essentially the same:
The worst of the trolls are financially weak and are purely in it for quick money, so they throw out very large blankets (lots and lots of “licensing” letters). They cannot in reality bring legal action in all of these cases, so they are from the jump in a weak position. They desperately try to hide this fact from individual targets by puffing themselves up and hiding key financial and licensing information from their prey. It is a short con, all it takes is a little bit of resistance and they fold.
This is the particular kind of troll Joel is talking about, and they can be defeated quite easily if all the targets know about each other and can organize.
It has little to do with the patent system, patent reform, or patents themselves. It is more about how to identify and respond to a protection racket. Getting businesses educated enough to know when they are being had, and giving them a way to organize their defense is a laudable goal imo.
Big corporations (or extremely well funded and diversified trolls) are an entirely different animal. They are not in it for quick money – it is a form of long con. They want the big prize at the end (whether it be money or market power), and are willing to spend considerable resources to get it. They don’t pull the trigger until they are sure they are willing to go all the way…
I’m not saying it is right, but the reality is it is dangerous to fight these guys in court. It’s easy to say everyone should just stand up to them – but sometimes they have patents, which stupid or not are legally valid… The have teeth and they have money – if you do not have both in equal amounts your odds of winning are very, very bad.
In either case the racket is the same, but there is a big difference between getting a letter from some NPE saying you should pay them a license fee because they have some obscure patent on ink jet printers versus getting a letter from Microsoft saying that you should pay them 5% royalties because your multi-milliion dollar widget business has bits in it that violate their not-so-obscure patents.
The NPE probably sent out thousands of those letters, has 3 lawyers and no money – Microsoft probably sent ten or so, has a army of lawyers and tens of millions in cash.
I’m sorry, but it just isn’t the same thing.
Agreed (though I’d also point that “worse than” most certainly IS a difference). Using the term “patent troll” for Apple’s actions is insulting to mere, run-of-the-mill patent trolls (NPEs). If the business world had something akin to the Geneva Conventions, then Apple’s action could more accurately described as “patent aggression” or “patent terrorism.”
Though I disagree with Spolsky’s argument that fighting patent trolls is solely the responsibility of the companies targeted by trolls. The whole “social responsibility” thing cuts both ways: if those companies have a responsibility to combat patent trolls, then (by the same token) consumers have a responsibility to support those companies & NOT support companies that do cave in to trolls.
Otherwise, it’s just ivory tower-radicalism: “this is a very serious problem and it’s critical that it be fixed… just as long as someone else does all the work.”
Edited 2013-04-03 22:12 UTC
Very true. Patent racket (“trolling”) is not limited to non practicing entities. Big companies like MS and Apple are racketeers with big experience.
As pointed out in the article patient trolling by Non-practicing Entities is an unethical protection racket and the companies involved gangsters. Make this practice illegal and the argument for allowing companies that have division devoted to patent trolling becomes unsustainable. Legitimate companies are not allowed to engage in practices that are illegal and mafia like, once patent trolling is legally defined as illegal and using IP in this way illegitimate, then large companies will also lose the ability to behave in this way.
The thin end of the wedge.