May I Nominate Mary Bono For “Jackass Of The Week”?

Daring Fireball has an occasional feature called “Jackass Of The Week” that highlights exceptionally stupid or misleading public statements made about Apple. Lately it seems like “analyst” Rob Enderle has established a lifetime lock on the award, but on the off chance it’s still in play, I’d like to nominate Rep. Mary Bono (R, CA) based on “her rhetorical questions to Tim Berners-Lee (!) at a Congressional hearing yesterday”:http://www.macworld.com/news/2007/03/01/bernerslee/index.php :

Bono questioned if [removing DRM] would prevent mass stealing of copyright materials. “Is that not the equivalent of having a speed limit but not enforcing the speed limit?” she asked.

We do have a speed limit that’s not generally enforced. How often do you see a Highway Patrol car? How often do you see someone get pulled over? Based on my commute, my answers are “maybe once a week” and “maybe once a month”. And yet the highways of Silicon Valley have not devolved into “Mad Max” or “Death Race 2000”. Most people speed a little bit (don’t tell anyone, but I usually drive 70 instead of 65, and sometimes I kick it up to 73 when Underworld or Led Zeppelin come up on my iPod.)

Some people drive much too fast, or recklessly, and cause accidents. But putting enough police cars on the road to arrest everyone driving over 65 would be hideously expensive and cause chaos; while installing tamper-proof governors on all engines to enforce speed limits is the kind of silliness used only in satirical SF stories.

But it gets better!

Bono said strong protections for digital content are needed. “With great respect to Steve Jobs, he’s trying to sell hardware, first and foremost,” she said. “I wonder if he would feel the same way about his patents being on the Internet free of patent protection.”

Earth to Ms. Bono: Apple’s patents are available free on the Internet. The Federal government requires that they be made available. Like this one [PDF] covering the user interface of the iPod. Anyone can read these patents. Anyone can use them to figure out the workings of a patented device, and use them as the basis of their own research on improved devices, and even patent and sell their own sufficiently-novel improvements. That is the whole point of patent law: to keep inventors from hiding their ideas, and to encourage creativity and innovation by letting inventors freely build on the ideas of other inventors. Doesn’t that sound nice?

Speaking of patents, Ms. Bono…

Let’s compare & contrast what patents provide:

  1. Limited term of monopoly (is it still 17 years?)
  2. Guaranteed public access to the details of the invention
  3. Inventors are free to reverse-engineer, examine, and improve on the invention
  4. Inventors who come up with sufficiently novel improvements can freely patent them and sell products based on them, without obligation to the original patent holder

…with the mess copyrights are in:

  1. Effectively infinite term of monopoly (currently about 90 years, and Congress has made it clear that it will be extended whenever necessary to, literally, prevent Mickey Mouse’s early works from falling into the public domain.)
  2. Copyright holders are allowed and encouraged by the DMCA to prevent public access by means of copy-protection
  3. The DMCA explicitly makes reverse-engineering of copy-protection a crime.
  4. Copyright law requires permission to make a subsequent so-called “derivative work” that’s based in any way on any piece of the original.

Mary Bono is, of course, better known as the widow of Rep. Sonny Bono (R-CA), who was himself known for such innovations as “I Got You, Babe” and his later legislative efforts (unrelated, I’m sure) to extend copyright terms to infinity-on-the-installment-plan. As the current copyright holder of that 40-year-old song, she benefits financially whenever it’s played on the radio, used in a commercial, bought on a CD, downloaded from iTunes, shown in a movie like “Groundhog Day”, played on the muzak at an Old Navy store, covered “ironically” by a punk band, sold as sheet music to a beginning pianist, …

Reducto ad absurdum

Let’s imagine if this state of affairs applied to a 40-year-old patented invention. I’m lazy so I’m going to make one up: let’s say that Burroughs had patented virtual memory in 1966. (This is untrue. You couldn’t even patent software algorithms back then. But work with me on this.)

This temporary monopoly might have been enough to pull Burroughs ahead, out of its distant-second position relative to IBM, as time progressed and demands on computer power and memory increased. Burroughs’ computers would have been more desirable, and other vendors like IBM and DEC would have had to pay hefty licensing fees to Burroughs to use VM in their own operating systems.

…but this would have come to an end in 1983, just in time for the rapidly evolving personal computers to start freely making use of virtual memory (actually it took until about 1990 for both Windows and the Mac OS to introduce it.) So let’s imagine that, thanks to the (fictitious) tireless legislative efforts of former Burroughs computer scientists turned Congressmen, patent law were like copyright law. (In fact this would make it a lot like trade-secret law, as far as I can tell.)

So where would we be today? Burroughs would still have monopoly ownership of the concept of virtual memory. It would likely be a major player in the computer industry to this day, especially since any other manufacturer who wanted to use VM would have to pay Burroughs a royalty. (Or Burroughs might have shriveled up into a patent troll, a parasite existing on the royalty payments from real computer companies.) This would naturally increase the cost of computers. No open source project, like Linux or BSD, would be able to use virtual memory, since there’d be no moneyed entity to pay the royalties.

Even more interesting: the algorithms behind virtual memory would be a black art. Reverse engineering a Burroughs or Burroughs-licensed VM subsystem would be illegal. Virtual memory couldn’t be described in textbooks or taught in university classes. No one could research virtual memory, or describe or implement improved versions of it, without permission from Burroughs.

(This probably means that virtual memory wouldn’t be nearly as advanced as it is in the real world, where most of its implementations have been freely inspectable and modifiable since the early days of Berkeley Unix in the ‘70s. It’s a simple idea, but implementations become rather complex in search of greater efficiency, and there are all kinds of interesting extensions like compressed backing stores (a la RAMDoubler) and memory-mapped files.)

There might be underground hacks that patched feeble microcomputer OSs to add virtual memory support. These hacks would have to be disseminated through pirate channels, and Burroughs’ lawyers would be busy sending cease-and-desist letters to anyone publishing or distributing such software or allowing it to be stored on their servers. They’d probably even start going after ordinary computer users who downloaded the virtual-memory software and installed it on their computers.

Does this ugly scenario sound familiar?

Previously: Music (Prologue)
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By
Jens Alfke

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March 2, 2007
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11:27 am

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