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BLOG@IP::JURPatent Attorney Axel H Horns' Blog on Intellectual Property Law.
Wednesday, July 05, 2006FFII Mission Statement Revised: The Good, The Bad, And The Ugly.The FFII is well known amongst patent people for their contribution to the debate on the patentability of computer-implemented inventions. Now, as this project of secondary EU legislation is  long dead, FFII have to re-think their mission statement. Mr. Pieter Hintjens, President of FFII, has recently posted on his blog a text under the title "The Digital Majority", attempting to re-define the concept of the Digital Divide. A more traditional definition would understand this term as the the gap between those with regular, effective access to digital technologies and those without, the gap caused by outer circumstances, e.g. scarceness of financial resources in developing countries, social imbalances in industrialised countries or the like. Now, Mr. Hintjens proposes to understand the concept of the Digital Divide in view of a personal mindset of individuals by stating a dichotomy between those who have accepted the existence of a digital revolution caused by unleashing the Internet in the mid-1990s and who embrace a new world order coming over us in consequence thereof, on the one hand, and those deniers, who do not, on the other hand:"There are two kinds of people. Those who get it, and those don't.A first question might be as to whether or not there is something like an Internet revolution at all. I am inclined to accept that the Internet will change everybody's life more than what is perceivable today because of I agree to a common notion that, with regard to technological basic innovations, short-term effects are often overestimated while long-term effects are grossly underrated. This difference is, in a nutshell, the essence of the dot-com bubble and -crash a few years ago. And I tend to agree that some people are aware that more long-term effects of the Internet revolution are to come, thereby working hard to stay in touch with their time, while others ostentatiously do not bother. The borderline between both groups, however, is not only a matter of age as suggested by Mr. Hintjens. The overall situation is difficult to assess. For example, some years ago the music industry has succeeded to shut down the file-sharing site of Napster.com, effectively disrupting their original business model, on the basis of a traditional and long-standing interpretation of copyright law. Meanwhile, copyright law has even been made more tight, and there seems to be virtually no option in any foreseeable future that business models like that of Napster.com might ever become available. However, life goes on, and initiatives like Creative Commons are working hard to foster the revival of a culture of of free file sharing originally envisaged by Napster.com the other way round by setting up a legal environment wherein authors can easily disseminate their own contents under licenses which are compatible with a culture of free file sharing. Currently, nobody knows which of the models will prevail on the long term, the traditional closed model of today's big players in the contents industries, authors utilising certain licenses developed under the umbrella of the creative commons, or both.The true mishap in Mr. Hintjens' text, surely deliberately plotted for propagandistic purposes, is the attempt to align a dichotomy between "Those who get it, and those don't" (whatever that precisely might mean), on the one hand, with the attitude towards the patentability of computer-implemented inventions, on the other hand. Empirically, there is no evidence available to support a correlation as pretended by Mr. Hintjens. To the contrary, it is a political promise designed as a lever to create a self-fulfilling prophecy. This attempt of semantical warfare appears to be nothing else than means for fishing for supporters by offering a manichaeic duality between the good, which are not only superior in morality but also forming an exclusive elite knowing what the new digital world order is demanding, on the one hand, and the bad, who are not only inferior in morality but also ignorant of the new digital world order, on the other hand. And, yes, I do see the hint in Mr. Hintjens' text indicating that the overall dichotomy is weakened a little bit by giving room for a third and residual set of ugly creatures clearly seeing the implications of the new digital world order but nevertheless not agreeing to the conclusions drawn by FFII supporters: The patent professionals and related folks. "Compromise is not an option", Mr. Hintjens writes. Maybe that any willingness to deal with the complexities of the relationship between Intellectual Property and business models in the Digital Age might endanger the self-contained construct of ideas on which FFII build up their policy. In this context, I am in particular happy that FFII and their supporters did not make it to completely overwhelm the EU Commission with their standardised submissions to the public consultation on patent policy. The preliminary results clearly show that the matter is much more complex than only a pro or contra alternative on the patentability of computer-implemented inventions.Technorati Tags: Patents
Two comments: 1. It's "Pieter Hintjens", not "Peter Hintjen's" or other combinations. Small point but nonetheless accuracy is always worthwhile and welcome. 2. 400 of the 2000 submissions to the Commission came from IP laywers who used a template. (Commission's own figures).
@Pieter Hintjens: (1) Please accept my apologies for mis-typing your name. I now have rectified that problem in my posting. (2) I never have encouraged colleagues to submit any standard texts in response to public consultations. It is, on either side of a dispute, much better to use individual texts. I appreciate, however, that numerous companies and individuals have submitted individual responses. Nevertheless, I am astonished in view of the gap in participation between IT firms and the pharma business.
Mr Hintjens Thank you for reminding us all of the importance of accuracy. From the Commission's figures (http://ec.europa.eu/internal_market/indprop/docs/patent/preliminary_findings_en.pdf) 1022 of the replies submitted were "standard" replies. 32% of these were from patent practitioners, making up only 327 of the 2515 replies, not 400 out of 2000 as quoted by you. It is also interesting to compare this figure to the 60% (about 613) of standard responses that were from the open source and software developer's community. Also, while about 7% of the individual responses (about 105) came from patent practitioners, so few individual responses were sent by the open source community that the figures do not bother to show precisely how many there were. I recommend checking your figures before acting high-and-mighty.
@Gerontius: The problem with using "the open source community" as reference is that in the graphs everyone using a FFII standard reply was classified as "open source and software developers community". The FFII is however not an open source organisation. We are neutral as far as open vs closed source is concerned. A more correct term is used later, on page 9, where these people are referred to as "The IT SME's and professionals" (initially it also said "open source" there, but the Commission corrected that afterwards). In that same place, the Commission says that over 1,000 respondents supported our position. I'm not sure, but I guess the difference between that 1,000+ total replies and the 613 standard replies you mention are the individual replies supporting the FFII position. Possibly there were even less than 613 standard replies supporting the FFII, as e.g. Florian Mueller also published a similar document and I guess respondents using his document were put in the same "open source and software developers" category). It's a bit unclear to me how everything really adds up though, and the above reasoning could very well be wrong. In any case, it's clear that indeed a lot of standard replies were sent in by companies and others supporting our position.
Compromise is not an option. There is no acceptable level of friction any more than there is an acceptable level of cancer. We spend our lives removing friction, eliminating transaction costs, competing ruthlessly to be better, faster, more efficient. When someone comes along and tells us, 'this new law is going to turn you all into my serfs', and gets a massive, concerted, and well-organised hostile reaction. I mean, how stupid do you have to be? [...]" Compromise, Mr. Hintjens, is the essence of a civilised society. Are we to stop driving cars because some people are killed in automobile accidents? Are we to stop administering immunisations because a small percentage of people might develop cancer? The fact of the matter, Mr. Hintjens, is that society has weighed the risks and benefits and has concluded that some level of cancer is acceptable and some level of automobile deaths are acceptable. Of course, effort should be made to minimise these risks, but to demand that life be without risk is simply unreasonable. If this is stupidty, God spare us enlightenment. Post a Comment
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