And it is, it is, a glorious thing to be a Pirate King (1)
Piracy, and pirates, can conjure a variety of images. One picture it may bring to mind is that of a “Captain Sparrow” type figure buckling his swash in the remoter corners of the 17th century Caribbean, escaping certain death with a flair and style that guarantees nominations at film festivals and a sizable profit at the box office (2). Then there is another picture of a teenage geek in his bedroom copying a DVD of the above story onto another one for his friends. It is interesting to me the Walt Disney glorifies the former, who in reality were ruthless murderers and killers with no thought of their victims, while condemning the latter, whose actions have not yet been proved to hurt anyone and could well improve Walt Disney’s profits through greater exposure.
The pirates I would like to talk about are not “outlaws”, in the same way that privateers were not outlaws in the olden Caribbean. They are the litigation firms that scour the IT industry to extort money using the weapon of inappropriately granted patents...
The cause of my outburst on this is FireStar’s Patent Infringement Suit against Red Hat. I have examined the technology involved as a programmer, and, as far as I can understand it, there is nothing new there. I have been using automatically generated objects to access database schema and manipulate data for at least a decade, probably a lot more, certainly long before the 1998 date of the patent. FireStar may well have created there own implementation of this concept, but they were certainly not the first ones to do so. However, they managed to convince the USPTO into giving them a piece of paper they claim grants them exclusivity on the idea, which, as I understand it, if you pay the correct lawyer the correct money, is not hard to do even if you didn’t invent anything.
The patent system, especially in the United States, is a mess. There are those in the various legislatures and institutions of the US who are trying to sort things out, but the necessary progress seems to be moving at the lightning speed of a glacier, and like some of the real ones, may well be melted into nothing before anyone takes notice. The problem seems to be that the lunatics have taken over the asylum. Lawyers make money by people using them, and they appear to have manipulated the situation in the US to the point where, in order for your software company to thrive, you need to employ lawyers to prevent a FireStar type company firing their cannons at you, boarding your ship, taking your treasure and sinking you.
These IP Pirate (or Privateer if you don’t like the word) companies seem to be be largely legally based. This is not surprising since it is the law that is manipulated and used to extort, and as such seems to enjoy a perverse respectability. However, so did the Atlantic Slave Traders when they were around, and that certainly didn’t make them right. They are increasing in numbers too. Intellectual Vectors, founded by ex-Microsoft executive Nathan Myhrvold, is one of these. There are many more. Moths fly to the light, pirates sail where there are rich pickings.
There is an answer to the IP pirates’ problem, or rather the problem the IP pirates create for everyone else, and it is remarkably similar to the solution to the Caribbean Pirate problem of the 18th century. I am a European, and therefore I live in Europe (unsurprisingly). Here we have yet to embrace software patents in the same way as the US, and I believe we are richer for that. There is effort by some to try and go down the US path, but thankfully they have been unsuccessful to date, and hopefully will continue to be so in the future. I do not believe the FireStar shenanigans with Red Hat would have happened here. Also, as mentioned before, moves are in progress in the US to change the laws and procedures around Software Patents, and my pessimism on this may be misplaced as that concept seems to be gaining in popularity, and the non-sensibility of the current situation is coming to the fore more and more.
The old Caribbean Pirates needed friendly seas to sail in. The way they were defeated was to deny them of these. The same idea applies to the modern IP pirates.
References:
- “Pirate King” quote comes frm Gilbert and Sullivan’s Pirates of Penzance operaetta
- “Pirate of the Caribbean” films are a series of swash-buckling fantasy films produced by Walt Disney