Copyright is a Cautionary Tale for Patent Holders  

POSTED BY Chris Huffines AT 8:07 A.M. Feb 28, 2012

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SOPA, PIPA, RIAA, MPAA. In certain corners of the Internet, these are not just 4-letter acronyms, but 4-letter words. What is most striking about the conflict over digital piracy is the incredible level of hostility the copyright holders and their defenders, including the Recording Industry Association of America and Motion Picture Association of America, have generated. Patent holders and their defenders should take note: you are next.

As at least one writer has noted, home manufacturing promises to, in the very near future, do for patents what the personal computer did for copyright: transform infringement of intellectual property rights from a large-scale, high-volume, essentially corporate activity into something anyone can do easily, cheaply, and for their individual benefit. Once nearly everyone has the ability to manufacture a patented part or a product at home, how will the patent holders and the patent community react?

Historically, intellectual property rights have relied on the fact that infringement required equipment; copying a book or a device by hand is just not economically viable (and therefore flew under the enforcement radar). The threat of losing this investment in equipment, along with any profits from the violation, formed the backbone of the intellectual property enforcement mechanism. The pool of potential violators was manageable because there just were not that many people willing to run such an expensive risk. In addition, any violators were infringing on a large scale—the only way to make a profit—so it was easy to paint them as Bad Guys and maintain support for the protection of intellectual property.

For copyright, that happy state of affairs is now overturned. Technology has made it possible for anyone to not only infringe, but to do so on a micro-, individual scale. Worse, it gives the individual infringer a reason to think his or her behavior is somehow different and should not be grounds for liability. The existing copyright structure, which relies for its effectiveness on policing a limited pool of macro-scale infringers, is fatally flawed when dealing with widespread micro-scale infringers.

When the power of infringement democratized and the copyright holders tried to use the only enforcement mechanism available to them, the individual infringers unsurprisingly resented being treated like large-scale infringers, subject to the same process and penalties. Worse, all of the similarly-situated individual infringers sympathetically resented the copyright holders, too. The fact that they were in the wrong was not the problem, the problem was they were being hit with such an obviously outsized hammer.

Resistance grew, then metastasized into a crusade. In response, the copyright holders turned to legislation and treaties, like the DMCA, SOPA, PIPA, and the ACTA treaty, that incentivize abusive behavior by copyright holders. These efforts have only entrenched the opposition and poisoned any call for reasonable accommodations. This writer believes it will be years before the two sides can actually come together.

Patent holders, if they want to preserve their rights without making enemies of their prospective customers, should do everything in their power not to make the same mistakes the copyright community made:

Not recognizing change was inevitable—The basic assumptions on which copyright and patent enforcement rely no longer hold true. The old way of doing things simply will not work once home manufacturing becomes a reality. This will not be an incremental or localized change, the kind that planning for disturbance will guard against. Patent holders need to understand and accept that fundamental change is coming, and work to mold the new paradigm in a way that is both obviously equitable but is still a financially viable environment to operate in.

Not being the Good Guys—Copyright holders took actions which made it very easy to paint them as bullies who were out of touch with technological reality, which greatly diminished their credibility and effectiveness. For example, as part of their enforcement efforts, the RIAA has sued such notorious file sharers as single moms, the dead, and a family who did not own a computer. The RIAA has generally been in the right—or at least had a good faith basis for their allegations—but that did not matter. The organization never made a compelling case for why they were seeking astronomical judgments against what appeared to be random people. As a result, they looked like bullies persecuting targets who could not fight back. It is easy to rally support against a bullying, faceless corporation. By becoming the Bad Guys, the RIAA made it easy to hate them. Patent holders need to build a narrative in which they are Good Guys working to find a solution, not the Bad Guys picking on those who can't fight back, to enhance their credibility when it does come time to enforce their rights.

Not working with the community—The opposition against copyright holders has become both deep and wide, and has broken out into open conflict between rights holders and infringers. Any open conflict between the rights holders and the infringers will quickly become a David vs. Goliath narrative, with the rights holders in the position of Goliath. The United States is a nation whose people usually support underdogs like David. Allowing open conflict to occur automatically creates a bias against the rights holders.

Not working with the community will also widen the existing knowledge gulf between the patent holders and the potential infringers. Even inventors, most of whom (as another writer has noted) "are inexperienced in knowing what an invention is, what is patentable, how to articulate the invention and how to disclose it," are more knowledgeable about the details of patent law and the policy rationales underlying it than potential infringers, whose self-interest dictates they focus onto what patent law should be (suffice it to say, they believe patent law should allow their infringement). Confronting this self-interest head-on is far more difficult than working with the community to educate potential infringers before self-interest in favor of infringement arises.

Not proposing a Plan— By the time the copyright holders realized they were in trouble, it was already too late to pre-emptively educate or change the behavior of potential infringers. Even worse, all the copyright holders have done thus far is enhance the power of the existing enforcement mechanism; they have not addressed the ground shifting under their feet. The copyright holders never had a cohesive plan to deal with the new technological reality that could serve as a baseline for debate and discussion. Thought leaders in patent technology need to start the inevitable adjustment of patent law now, before the infringing masses have the power to infringe on patents on an individual scale.

As the saying goes, those who do not learn from history are doomed to repeat it. The history of copyright and digital copying is one the patent community should assiduously seek to avoid repeating. To do so, patent holders must begin proactive thought leadership to develop a solution where patented inventions continue to benefit society, but not at the expense of patent holders. The time to start these discussions is now, before technology catches up.

TAGS: Chris Huffines | Strategy | Copyright
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