Today the Internet lost a vanguard in the form of Geocities, at one point a dominant player in web-hosting and one of the first sites to offer the service to individuals on a massive scale and for free.  Utilizing a unique “neighborhood” design, users would be assigned to a particular sub-section depending on the focus of their site (such as “Petsburgh” for sites focusing on pets, or “HotSprings” for health and fitness).  It was a pioneer in bringing the power of personal expression and discourse ubiquitous to the Internet the masses, in large part because it made the creation process so simple.

Though it is often forgotten today with services such as WordPress, Blogger, MySpace, and other sites providing simple webpage templates, but  in Geocities’s infancy back in the mid-90s you needed to know at least a workable amount of HTML to create a page and maintain it.  Geocities was one of the first sites that offered a simple site generator that required minimal knowledge of HTML, and made it simple to add such “cool” features as a visitor counter, guestbook (a forbearer to comments sections today), and various HTML/text effects.  Sure, that sometimes resulted in some pretty awful looking pages, but it still helped to break down a massive wall blocking individuals from venturing onto the information superhighway (the go-to buzzword at the time).  Today this level of streamlining is expected, but back then it was a godsend for those wanting to dip their toes into the digital stream without first having to don waders.  In fact, it is fair to say that sites like MySpace, Friendster, and much of social media owe at least part of their existence to the pre-fabricated little ‘burbs that sprung out from Geocities.

As one analyst put it, “[i]t was was the first proof that you could have something really popular and still not make any money on the internet.“  Of course, this inability to generate sustainable revenue was a major reason why the service was discontinued by Yahoo!, which had been underperforming in recent quarters and needed to streamline its business somewhat.  Coupled with a shift in how people express themselves on the Internet – “ shifting away from isolated Web pages [and instead using] social-networking sites such as Facebook, with built-in features for creating a profile, staying in touch with contacts, and maintaining at least a little privacy,” it seemed that Geocities’s days were numbered.

Of course, with any passing, there are tributes to past glory as well as those who look to cull some message or greater meaning from its end.  In my opinion, Geocities ultimate demise was due to the same factor most sites wrestle with – they could not sufficiently monetize the immense traffic they received effectively.  Sure, Geocities adopted the tried-and-true banner ads, and I’m sure that generated revenue to a point.  But successful advertising on the web is elusive, and I have my doubts that it will ever be a viable option for sustaining a large hosting service like Geocities, Blogspot,  or Facebook.  Of course, people will point to Google as an example of a company profiting from ads, but Google is an extremely unique case – they are a leader in so many facets of the Internet (searching, email, blog hosting, etc.) and are so diverse in their holdings that they almost “had” to make money.  Their dominant position, though, is unique to them alone, and by its nature could never be duplicated by other companies.

It will be interesting to see if the next generation of user-generated service companies such as Facebook and Youtube find a way become profitable based on their users; my guess is that Geocities’s failings had less to do with its own inability to evolve or poor management as it did with the realities of the Internet, where paying for services sometimes seems sacrilegious.

But as for Geocities, I’ll miss it.  Back in high school, I actually used them to host an early web page shortly after I learned how to “code” in HTML.  I have no idea what happened to that site, but it was certainly fun to lay claim to a small plot of cyberspace for my very own.  Plus, as someone with precious little artistic talent, it was somewhat liberating to design a page that looked unique, if not a bit cool.  So R.I.P. Geocities, and hopefully people won’t ever forget how pioneering it was to have an address CollegePark.

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Finally sat down and read the amicus brief [pdf] filed by Red Hat in the In Re Bilski case.  In it, Red Hat argues that software patents “do not always promote innovation, and they may substantially hinder it.”  They note that the software industry matured and thrived without software patents, and quote Dr. Knuth at Stanford University, who said that “I strongly believe that the recent trend to patenting algorithms is of benefit only to a very small number of attorneys and inventors, while it is seriously harmful to the vast majority of people who want to do useful things with computers.”  Red Hat argues that the Federal Circuit decision [pdf] holding that software patents should be restricted to those algorithms “tied to a particular machine or apparatus.”  In effect, they are arguing that the legal world has turned its back on the teachings of Benson and Diehr, which required algorithms to be tied to tangible machines or transformative processes, and have instead adopted the more murky State Street Bank outlook that a patent is valid if the practical application “produces a useful, concrete and tangible result.”  Red Hat notes that software developers enjoy a robust amount of protection under copyright law, and that software patents create a world in which small-time developers are squeezed out by litigious trolls and patent war chests held as a defensive measure by large corporations.

Now, I do I agree with Red Hat that software patenting certainly needs to be reigned in somewhat; it does seem strange that Amazon can obtain a patent on 1-click purchases or that a company can make blanket claims to streaming audio and video with incredibly nebulous claims.  And I will concede that software patents do lend themselves to patent trolling in ways that mechanical and biological patents do not, chief amongst them the fact that quite a few early-issued ones were granted with overly broad terms.  Finally, the success of open-source software has shown that developers and companies can, and will, innovate without the presumed impetus provided by strong patent protection.

At the same time, though, I think there is some overreaction to the inevitable growing pains that software patents have gone through over the years.  While mechanical and chemical patents have existed for hundreds of years, software patents are significantly younger than the Baby Boomers.  This is still a young field, one that has been undergoing a significant examination and maturation since the 1970s.  Inevitably, there have been setbacks and poor decisions, and some of these missteps have led to unnecessary litigation that has stymied innovation, at least temporarily.  At the same time, though, I think it is too early to just dismiss software patents as wholly unnecessary and a pox on innovation, because I think they still can serve as a tool for growth in the industry if properly monitored.  For while the industry certainly matured somewhat during the 60′s and 70′s, it has also taken immense steps forward in the age of software patents.

Because the arguments I hear most often against software patents seem to focus far more on the inferior quality of issued patents rather than the value of patents in general.  I think all will admit that bad patents, in any discipline, need to be eradicated; but to dismiss all patents because of a few bad examples is the equivalent to throwing the proverbial baby out with the bath water.

Can Patents Level the Playing Field?

A key argument made supporting software patents is that it helps to level the playing field, especially as it relates to small companies and single inventors, because it provides a tangible manifestation of algorithms that, by their nature, are more fluid and commutable than other technologies.  By allowing an inventor to identify his/her novel invention and clearly articulate its metes and bounds to the world, he/she is afforded at least some protection from others “stealing” or otherwise using this invention without proper recognition and (I assume) financial compensation.

For example, small-time company A has invented a novel way to compress video and transmit it over a network connection with far greater efficiency than the current competition.  Now, they may try to license the technology to others, and during this process a major tech company such as Microsoft, Google, or Apple may catch wind of it and, based on some hint or revelation provided by this exposure, create a competing technology that is similar to company A’s technology.  Under current patent law, if company A filed a patent application for the technology and properly described the utility and novel elements of the technology, they would be entitled to some protections against this major tech company’s integration of company A’s novel technology.  And from a pragmatic sense, this works – company A put in the effort and R&D to create this improvement, and it would seemingly be unfair to allow this hard work to go for naught because a major player in the field joined the party late.

Because while I do not have much experience working in the tech industry, what little I have has shown the industry to be very Darwinian – large companies feast upon smaller companies and inventors specifically because they cannot adequately protect themselves.  Company A may be able to mount an offense via public relations on blogs and sue someone over a breach of confidentiality, but without patents the major tech company will release its own software and, because of its significant market advantage, dominate the competition even though they may not have been responsible for the innovation.  Sometimes the strong survive not because they are the best, but simply because they are able to leverage their size/knowledge/experience/resources to a degree that its competitors cannot.  But with a valid patent, the small inventors and innovators are able to level the playing field immensely, taking advantage of a system designed to protect the creators and expose their inventions to society at large.

But What About Copyrights?

One of the chief arguments made by Red Hat and other opponents of software patents is that software designers already receive adequate protection under current copyright law.  To an extent, I agree with them – copyright law forbids the exact copying (and some limited “equivalence”) of code without authorization.  This provides some protection for the inventor from direct copying by a competitor, and provides adequate remedies for violations at least on the small scale.  And unlike software patents, the rights conveyed by a copyright exist as soon as the code is recorded on a tangible medium, with further public registration an option but not a necessity.  No messy paperwork, no major fees, and some certainty that your innovation will not go unnoticed.

At the same time, though, copyright always felt like a round hole into which software was jammed into.  At its core, copyright law was intended to protect literary, artistic, and musical works – tangible works that by their nature can only take a single form.  If you significantly change the elements of a copyrighted work, the result is a wholly new and unique copyrightable work, not necessarily bound to the earlier work.  In other words, Moby Dick is only Moby Dick in the way Melville wrote it – the arrangement of words in a particular order that are embodied in the novel.  Take those same words and jumble them up, and you have another original work, but it is not Moby Dick.  Sure, there are a bundle of exclusive rights for a copyright holder that grant him/her some protections against unauthorized duplication and piracy, but by their nature that are less expansive than those granted by patents.

By its nature, though, software does not lend itself to a single permutation.  Though this is highly simplistic, while loops and for loops often do the exact same thing, yet can appear markedly different depending on how they are implemented.  Image rendering algorithms  can have significantly different processing times depending on the order in which they perform a certain set of shared steps, making one significantly more attractive than another to a particular customer.  The same really could not be said for a novel or a song – place the refrain of a song before the intro and it wouldn’t make much sense, nor would splicing chapters of a novel together in an illogical order.  While the value of most copyrighted works is in the expression of the work on a tangible medium, software’s value is derived far more from the ideas behind it, the innovation in the outlook and the fresh perspective and improvements they provide over the current guard.  Yet copyright protection doesn’t usually extend out to the mental ether – it is rooted in the crumpled pages and sheet music, the framed canvases and the blueprints.  Copyright is like a lasso; at first it might seem expansive and wide-ranging, but pull on it a bit and it ultimately captures only the tangible object it is wrapped around.

So if copyright can best be described as a tight lasso, patents are more like a free-flowing net.  While patents are not perfect, they cast a wider net over an invention, capturing at least some of this novel thinking beyond what is submitted as the best mode or manifestation of the idea.  True, this net needs to be further inspected and refined to make sure that it does not capture more than it should, but it does provide far more protection for the “essence” of an invention than copyright, protection that I suspect most inventors would rather retain at least initially.

Can Open-Source and Patent Law Co-Exist?

The success of the open-source movement is indisputable; I am currently writing this post using Firefox on a system running Ubuntu while listening to music with Songbird.  Some of the best programs available today are open-source, and the community has proven to be far more robust and innovative than I think even its greatest proponents ever imagined.  It has also shown to be a very adaptive movement, adroitly dealing with legal issues through community-based decisions such as the GPL.  It has fostered innovation and has shown to be a viable competitor in virtually every arena, from operating systems to gaming, and all without the use of software patents or proprietary software.

At the same time, open source is not a purely altruistic movement.  Red Hat, for example, generates millions of dollars a year in income through its various products and services.  Many companies that provide “free” software generate income through maintenance, training, and other services that, arguably, are as profit-driven as those from industry “behemoths” such as Apple, IBM, and Microsoft.  Even those companies and individuals who provide their expertise to the open-source movement without any demand for direct compensation usually expect to benefit in a variety of non-monetary ways, such as increased market presence, prestige, and recognition.  And it is a safe bet that if someone were to benefit from the use of their code or innovation without proper attribution or recognition, many of them would feel betrayed and take measures to remedy it.

I guess that is my point – open-source and the proprietary/patent software worlds are profoundly different on some levels and remarkably similar on others.  They will likely never be fully reconciled, and that is perfectly fine.  But can only one survive, or can both co-exist provided that they limit their interactions?

Red Hat argues that “[a] separate but related problem  faces all software developers—that of the impossibility of patent clearance, or determining whether there are existing patents that may be said to read on a new product.”   By allowing software patents, you are creating a world in which innovators are constantly at the mercy of some unknown patent being hoarded by a patent troll, to be used as a crude ax at a moment’s notice to eviscerate the innovator.  And to an extent, I understand why this must be troubling to small companies and single inventors – your work is independent of this patent, yet you are held subject to it even if you had no knowledge of its existence before your were served with the lawsuit.

But I think the argument here goes more to a bad patent than the notion of a patent.  Companies and inventors alike hate bad software patents, those patents which are incredibly broad and poorly-written, claiming far-reaching technologies without providing adequate description and disclosure.  That I understand, and I think the patent system is slowly eliminating these mistakes while correcting the flaws that allowed them to exist in the first place.  At the same time, though, the patent system also provides a level of protection for these smaller companies otherwise unavailable in the industry.  And for all the complaints that software lawsuits are exploding, litigation exists across all disciplines, and the uptick in recent years probably has more to do with the relative immaturity of the art compared to other, more established disciplines, where there are more precedents clearly-defined stakes.  Given time, I suspect that litigation will subside and fall more in line with other fields.

What I think is oftentimes lost in the debate over software patents is that for every party “losing” out because a patent exists covering their technology, there is a party whose rights are being protected for the work they put into it.  Sure, this “race to the office” is a major shortcoming of the current patent system, but no system is perfect.  Red Hat argues that software patents make it impossible to perform a complete search of the prior art – try performing a similar search over just copyrights, which do not require registration and receive virtually not scrutiny or vetting.  At some point, you just have to keep innovating and hope that you are the first to truly innovate.  And if there is a patent that covers your current invention, do what most companies do when they run into a competing patent – design and innovate around it.  In crowded arts this might be difficult, but it is possible.  Companies make billions of dollars by innovating around what is known, and my guess is that some of these innovations would never have been considered without the current state of the art being codified in some USPTO filings.

Conclusion

Ultimately, I think that software patents are not going to disappear from the landscape, though they will likely be further massaged and augmented by decisions like In Re Bilski and cases that have not even been filed.  While I recognize that there are flaws to the current patent system, it also provides a substantial number of benefits both to inventors and society in general.  To cast it aside at this point would be premature, and may very well have a detrimental impact on innovation going forward.

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As I wrote about earlier, Time magazine has made an investment in covering the rise, fall, and potential rebirth of Detroit, purchasing a house in Indian Village and stationing a number of writers there for the foreseeable future.  The goal is to study and document the city from within, to delve into what once made Detroit the Arsenal of Democracy but now has it resembling a graveyard of opportunity and American industry.  Time has just published its first article about the city, and I definitely think it is worth the read for those wondering what happened to Detroit and, more generally, what has happened to an icon of American industry.  Unfortunately for those who have lived in the area and understand the dynamics, the story’s arc is both depressing repetitive but also painfully truthful.

The article rather fairly articulates the myriad of issues that have plagued Detroit since the mid-50′s – both overt and passive racism, segregation and subsequent power drain between the city and suburbs, corrupt and/or indifferent politicians in the region, and the auto industry’s inability to evolve and address the growing competition from overseas competitors (though to this point, until recently Americans did not seem to mind SUVs and other large cars Detroit was producing.  It could be said that Detroit was simply providing for a market that shifted their priorities far quicker than a company could have responded to).  These factors should surprise absolutely no one who has lived in the Detroit area for any substantial period of time.

Case in point – the author notes the rather jarring divisions and boundaries that exist between the suburbs and the city proper.  Driving along the Detroit River on Jefferson Ave. away from the city center, you pass a collection of check-cashing shops, highly-fortified strip malls, and apartments in various levels of disrepair – and to be fair, that stretch of Detroit has improved dramatically since I was a child only 15-20 years ago.  Yet, once you pass Conner St., you are met by lush, tree-lined streets and beautiful homes in Grosse Pointe, one of the most exclusive and expensive areas in the entire state (and perhaps the entire Midwest).  In a span of a 1/2 mile, the entire neighborhood undergoes a metamorphosis to such a degree that it is difficult for people not used to the region to understand.

Similarly, a drive along Woodward Ave. (the main artery north of the city) is just as shocking an experience.  In the article, the author notes that Eight Mile Road acts as a de facto boundary between the city and the suburbs, but I think most people’s knowledge of Eight Mile Road is limited to Eminem’s movie.  South of Eight Mile, you witness burned out and dilapidated factories, storefronts boarded up and vandalized, and every stereotype you have ever heard about the city.  Yet, go 2-3 miles north of 8 mile, and you are in Royal Oak, one of the few hip, trendy towns in Detroit and a city with a thriving young professional base.

The social and economic gradients between the city and the suburbs are so steep, so abrupt that it is hard to grasp for outsiders; I could read it on the faces of my wife’s family when they visited the city while planning our wedding.  Most suburban areas have a symbiotic relationship with the key city in the region; sure there are disagreements and petty infighting, but cooler heads prevail and integration is maintained because it benefits everyone involved.

Not Detroit.  The region has missed out on a laundry list of potential projects and innovations that would have made the area infinitely more successful and harmonious – a light rail system, cooperation on Cobo Hall‘s expansion, school integration and improvements, etc.  This inability to compromise, to see how cooperation would benefit everyone, will likely be a defining theme in Time’s works, and in a way that people will see eerie similarities with national politics.

What Detroit Says About America

The other key theme that I hope emerges, and one that I feel has often been overlooked, is how the decline in Detroit mirrors the broader decline in manufacturing and exporting that was once the bedrock of America.  For a variety of reasons, America no longer seems willing (and perhaps not able) to produce goods within its borders for consumption both locally and beyond its borders.  Of course, major factors of this erosion in domestic industry include inexpensive foreign labor, rising cost of US healthcare, insufficient tariffs and ill-defined foreign trade policy, and a shifting global economy.  But I also think a major factor, one that has not been discussed nearly as much, is a shift in America’s view on manufacturing and the “working class.”

Not to sound reactionary or disingenuous, but I think this shift occurred with my parent’s generation, as the Baby Boomer’s flocked to college in droves and an emphasis was placed on education versus working for the first time in America’s history.  Suddenly, people were graduating from high school and entering college (and/or grad school) at never-before-seen rates.  At the same time, their parents had exited World War II into an era of historic growth and prosperity.  The world was safe, people had nice homes and stable jobs, and kids could be kids for a bit longer; there was no push to enter the workforce because opportunity was always available.  So millions of American children were given the opportunity to graduate from high school and college without pressure to join the working force immediately or be shipped off to fight in the war.  That freedom of choice, to define your career on your own terms and timetable, was something new to most of America, and it clearly struck a chord.

What was once the bastion of a select few wealthy American children college became affordable to far more families.  Instead of working on a farm or in a factory, kids were encouraged to study various subjects at college, and while that led to some amazing innovations in a variety of fields, it also created a gulf between the “educated” and the  rest of America that has been growing since.  Income disparity is the most emblematic, but culturally it became an issue that “smart” people went to college and ran the world, and those who worked in city services or in manufacturing were “doomed” to some second-rate life.  With respect to income disparity, it began to take shape between those who attended college and those who did not, to the point that today’s college graduate makes nearly twice as much money per year as a high school graduate.  And to make matters worse, a stigma became attached to manufacturing that didn’t exist even 20-30 years ago, that it was for “dumb” people who lacked the intelligence and character to “do something better” with their lives.

(Full disclosure – the author is a computer engineer graduate with a law degree.  I’m a prime example of the “stay in school, you’re better because of it” mindset.  So if I come across as completely wrong on this topic, please comment and forgive my ignorance.)

Working in a factory is difficult – my Dad did it for a couple of years during and after college, and it certainly did not sound appealing.  It is hot, dirty, and dangerous; the stories you hear about individuals being injured rather spectacularly while working on an assembly line, while perhaps embellished, are still quite real.  But more than the difficulty, it has the look and feel of a monotonous and “brainless” job that people do not identify with office work (even though I would certainly debate this point).  And perhaps most damning for manufacturing, it seemed like the “fallback” for kids who didn’t do well in school, where all you needed was a high school diploma and working hands to nab a decent job with good benefits.  It didn’t seem like a “good” job, but one that was a last resort for those who couldn’t do anything else.

Most parents want what is best for their children, and that certainly includes launching them toward a career that will both make them happy and provide economic stability.  When college and high school graduates made approximately the same amount of money, there was little impetus to push your child to college unless he or she displayed some particular acumen or propensity to a subject that would be best served in a college atmosphere.  But starting with the Baby Boomer generation, you had parents who had gone to college, who emerged with high-paying jobs that did not subject them to the factory floor and all of its real and perceived dangers.  In addition, parents who did not go to college but who witnessed the growing income disparity steered their children toward more schooling as a way to succeed in the new marketplace.  This further marginalized manufacturing and, more generally, the working class.  You didn’t want your kids working in a factory because it was “menial” labor, a job without much of a future beyond a steady paycheck.  While I think the recent economic downturn has reset people’s opinions on this consistent employment, for years this was seen as the easy way out, and you should aspire to something greater via attending college.

Now, it would be foolish to equate the fall in America’s manufacturing base to an emphasis on education.  A major factor was increased costs for manufacturing compared to foreign labor and resources.  Instead of producing steel, televisions,textiles, and automobiles in America, it was far cheaper to outsource them to other countries.  Maximum profits, global integration, and whatnot accelerated the income gap and the fall of manufacturing in America.  And I also admit that this is a vast simplification of the reasons behind the shift in America’s economy – even though more people are heading to college, the number of graduates remains around 25%. So clearly the vast majority of Americans are not becoming over-educated Ivory tower acolytes.

But along the way, America changed its opinion on manufacturing and related jobs; what was once an envious position for growth and middle-class prosperity became the dirty, abject tasks you shipped off to third-world countries or the fringes of the Rust Belt.  Today, we are a society that favors services over manufacturing, in which America imports more than it exports.  And I can think of no other industry that has been more affected by this shift than the auto industry, and no city moreso than Detroit.

Of course, one of the few exports that America continues to enjoy a solid advantage is in entertainment media, specifically movies.  Thus, perhaps it should come as no surprise that Michigan has recently adopted tax breaks and other incentives to entice movie studios to produce films in the state, with many settling in an around Detroit.  The goal is to make Michigan, and specifically Detroit, a “Midwest LA,” creating jobs in production companies, set designing, and other related services.  And in a way, this kind of makes sense – Detroit and the surrounding area has long been designed to provide services on a massive scale; movies are one of the few remaining industries that can make viable use of massive factories and a production-based economy.  So far, returns have been solid – see Gran Torino and Transformers, as well as the upcoming movie Whip It.

So a study of Detroit’s economic realignment and rebirth, if any, will likely mirror that of America.  While I have my doubts that Time or anyone else will be able to capture such a dramatic shift in real time, I am excited to see how Time plans on tackling this issue in its future essays.  For all its warts, Detroit still has a chance to recover and reclaim its place in America as a driver of the economy; I think these articles will be a great opportunity to put the average American in the passenger seat.

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Posted another article on mgoblog.com. Check it out – http://mgoblog.com/diaries/so-how-does-defense-stack.

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