March 19, 2003 · Lessig
I had dinner last night with an extraordinary group of computer scientists. As always in such contexts, the discussion moved quickly to patents. I’ve been a skeptic about software and business method patents for a long time (while a supporter of, e.g., drug patents), but what always strikes me in these contexts is how violently opposed people in the industry are to software and business method patents while the legal system remains oblivious.
I had thought there was some hope in the new administration. An article by LA Times reporter David Streitfeld quoted the new Patent Commissioner, James Rogan, saying smart and skeptical things about the patent system. I wrote a piece for the FT based in part on that interview, only to have his office call me to tell me that I had gotten it wrong. The “crisis” that Commissioner Rogan sees is not the “crappy patents” (their words) issued by the patent office; the crisis, I was told, is that the office is not issuing patents fast enough.
But the more frustrating response to my article was the follow-up by Professor Epstein. He called my “indictment” “harsh.” As he says, “to my knowledge” there is “no fundamental signs of breakdown.” He points to “OS X by Apple” as evidence that “strong intellectual property rights [have not] Balkani[z]ed the intellectual universe.” “One looks,” Epstein writes, “for fundamental flaws in the underlying institutions only when the progress starts to grind to a halt.”
My initial (and uncharitable) response to reading this was that Professor Epstein was not looking very far. But after dinner last night, I recognized that there is a fundamental gap in understanding. Most lawyers and policy makers do not understand what technologists believe; most technologists don’t understand that (at least some) lawyers believe that what technologists believe about the system should matter.
So here’s an idea. I’d like to construct a page of views of technologists who have experience with the system. The aim will not be to evaluate the system as a whole, but instead to collect credible testimony about the burdens the system imposes. Policy makers should be evaluating whether the benefits outweigh the burdens. My aim is not to do that weighing. My aim is simply to collect stories and evidence about the burdens.
If you have experience and a view, then email me and describe both. I will collect them and verify the source, and then make the results available here. The aim is not to conduct a poll; this will not be a representative sample of anything. But it would help immensely to have a place where people could go to read what technologists say to me all the time.
Update: Karl-Friedrich Lenz has sent a link to a great list of patents. This is important and useful, but I’m eager to hear stories of how the system affects ordinary software development.