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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Skype Lawsuit

I meant to write about this article in the NY Times last week, but it kind of fell through the cracks.  It sounds as if the creators of Skype , the leading web-based phone service, are none too happy with how eBay, the previous licensee (and effective owner of the Skype brand), was altering their code, and thus have filed a suit against them for violation of their license agreement.  Well, technically the lawsuit is between Skype and JoltID, but JoltID is merely the holding company for the technology originally designed for use in Skype.

It will be interesting to see how this plays out.  The source of the disagreement is certainly not novel – inventors generally like to retain a fair bit of control over their products even if they ostensibly cut ties with it.  But with the rapid proliferation of VoIP technologies being peddled by both web-based and service providers such as phone and cable companies, it is somewhat strange that either side would really be fighting over the technology.  Sure, the Skype name still carries some cache, but it only generated about $170 million in revenue for the last quarter [PDF], and doesn’t look to be a cash cow anytime soon.  Furthermore, a quick search of Google patents did not unearth any patented technology by the original Skype inventors, so this doesn’t seem to be an issue of potential market interference/restriction.  So I am interested to see how this case plays out; if it truly concerns a licensing violation, or if it is merely a power play by inventors looking to capture lightning in the bottle a second time with the same technology.

Brief College Football Analysis

As an alumni of both the University of Michigan and Michigan State University, I oftentimes find my whole Saturday dominated by that seasonal spectacle known as college football. Most weekends, UM and/or MSU play some (relatively) inconsequential opponent (looking at you, Indiana or Montana State), and my attention can wander to any number of things (Internet, my wife, walking my dog, eating, etc.). Yet, every once and a while you have a weekend list this past one, when you are reminded just how exciting college football can be, and how sometimes you may take it a bit too seriously for your own help.

Poor Sparty

In the early game, Michigan State was stunned by Central Michigan at home, 29-27.  Now, that alone is not an immense shocker – CMU is expected to compete for the MAC crown, and their starting quarterback Dan LeFevour set the career yardage record for the conference in the game against MSU.  At the same time, though, MSU was ahead for almost the entire game , only to give up a late touchdown pass with 30 seconds less.  Then, somewhat inexplicably, CMU went for a 2-point conversion and the win, leading to a pass out of bounds and, seemingly, the end of the game.  Sure, CMU could try to recover an onside kick, but those rarely work, especially when the other team clearly knew it was coming.  So CMU lined up the kick, MSU trotted out the hands team, and everything seemed academic at that point – CMU would kick some dribbler toward the sideline, there would be a crush of players converging on the ball, and MSU would either recover it or the ball would skip harmlessly out of bounds.

So what happened?  The CMU kicker put some wicked spin on the ball, it took the perfect hop, and CMU recovered.  Of course, they still had 25 or so yards to go to get into viable field goal range, and only about 20+ seconds to do it.  Somehow, LeFevour and CMU was able to move the ball down the field to set up a 47-yard field goal attempt for the win, but the kicker missed it to the right.  So game over? Nope – an MSU player had jumped offsides, resulting in the double whammy of giving CMU another kick AND moving them 5 yards closer. At this point, it should be pretty obvious what happened (I wouldn’t have wasted this much time writing about a 1-point MSU win). The kick was thisclose to missing but slipped through the uprights, and CMU recorded a season-defining win while MSU’s inflated preseason hype looks even more ridiculous than it originally did.

Unfortunately, these types of losses seem to be the norm for State.  I have been an unabashed UM fan since I was a little kid, but as an alumni I still want MSU to win and be competitive.  But outside of the Pearles era and the few years Nick Saban stuck around, MSU has been a struggling program most of my life.  During Bobby Williams’ tenure, the team featured top-notch talent (including record-setting WR Charles Rogers and RB T.J. Duckett) but consistently underperformed.  Then under John L. Smith’s rein (which largely coincided with my time at MSU law school), the team self-destructed so consistently that I rarely checked game scores after the second week in October, presuming that the team would find a way to blow any game there were in.

But Mark Dantonio was supposed to be different.  Not only did he lead MSU to two straight bowl games, but he was the type of coach he instilled discipline and accountability in his teams, traits that have seemingly always been missing with the Spartans.  They have always had decent enough talent – not necessarily dominant recruiting classes, but in that mid-range level trending upward.  A good coach can certainly win with that talent, and consistent winners recruit better, creating a positive feedback loop that can create nationally-ranked programs out of schools like Utah and Boise St.

But watching this game, I saw the same demons that have plagued MSU in the past rear their ugly heads again.  They had more penalties than CMU (given, only by 2, but as mentioned above, one was at a pretty inopportune time), and were outgained by over 100 yards by a team that only recorded 182 total yards the week before against a pretty mediocre Arizona.  The offense was immensely predictable in the second half, and while the defense at times looked good at times, they also let CMU march down the field at times virtually unencumbered by things like QB pressure and receiver coverage.  It was a disappointing loss for the team, but on a greater level it exposed the team for perhaps what it is – a second-tier team in the Big 10, one relegated to the random New Years Day bowl games in Florida or Texas sandwiched between some 5-7 seasons.  I’m sure Spartan fans wish that wasn’t the case, but the team’s play certainly is trending toward that being a reality moreso than ascension into the upper-echelon of the conference and the national rankings.

Go Blue

In the afternoon game between UM and Notre Dame, you had two teams seeking redemption.  UM, coming off a horrendous 3-9 season the year before (the worst in school history), was also stinging from an inflammatory and dubious story about practice tactics by the Free Press.  While a season-opening win against Western Michigan had helped to soothe the pain a bit, everyone knew that the Notre Dame game would be the true barometer for this team.

Notre Dame, of course, had its own demons it was trying to extricate.  Just two years ago it too had suffered through a 3-9 season, and last year struggled to a 7-6 record while the media and fans were calling for head coach Charlie Weiss’s head.  Yet, this year was supposed to be different – uber-QB Jimmy Clausen was playing behind a solid offensive line, and the team had two top-notch WRs in Golden Tate and Michael Floyd.  The defense was improved, and at least one (potentially biased) pundit was calling Notre Dame a dark horse National Championship contender.  So spirits were high in South Bend as the Irish traveled to Ann Arbor.  Plus, when you have two of the top-3 winningest programs in college football history, there’s a chance for something special.

So what happened?  Well, one of the most exciting and nerve-wracking games I’ve ever witnessed.  Michigan’s true freshman QB Tate Forcier played well beyond his years, accounting for 3 touchdowns (2 passing, 1 rushing), including the game-winning pass to Greg Mathews with 11 seconds left in the game after Notre Dame erased a double-digit lead for the Wolverines heading into the 4th quarter.  Clausen played quite well himself, throwing for 3 TDs and generally looking like one of the best QBs in the country.  That said, he still looked rattled whenever UM was able to get pressure on him, but to ND’s credit they were able to give Clausen enough time on most of his passes.  Both defenses played well at times but were clearly no match for the offenses, and both running games were surprisingly efficient (especially Notre Dame’s) given the fact ND’s usual focus on passing and the fact UM’s top back Brandon Minor was still recovering from an injury that sidelined him for the past few weeks.

Without waxing poetic or wading too deep into the sea of hyperbole, I think this UM team may go down as one of the most exciting and “fun” to watch in recent memory.  That doesn’t mean I think they’ll be one of the best – I figured 7-6 or 8-5 with a bowl win at the beginning of the season – but Coach Rich Rodriguez’s offense looks to finally be clicking with Forcier and fellow freshman QB Denard Robinson at the helm, and the team is young enough that they should consistently improve as the season progresses.  Plus, the Big 10 looks to be down a bit this year, with Ohio State and Penn State the clear favorites followed by a bunch of mediocre teams.  It is not inconceivable that UM would emerge with the third-best record in the conference at season’s end, a dramatic turn-around and a clear springboard to a return to national relevance in 2010 and beyond.

But that’s getting a bit ahead of myself.  Last weekend’s game was one for the ages, and one that I hope fans won’t soon forget.  For all the bashing of this team and its head coach since he stepped on campus, this team is clearly make strides toward being the type of team that consistently challenges for national championships and Big 10 titles, and that is the standard UM fans have come to expect (even if the reality has been that outside of the 1997 season, the team has been a good-but-not-great program for decades).  I’ve always had faith that Coach Rodriguez was a good hire for this program after Lloyd Carr; I’m just happy to start seeing the benefits of that faith on the field and off.

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“To qualify as [patentable subject matter], the claim must clearly convey that the computer is programmed to perform the steps of the method because such programming, in effect, creates a special purpose computer limited to the use of the particularly claimed combination of elements (i.e., the programmed instructions) performing the particularly claimed combination of functions” – USPTO Interim Guidelines for reviewing Computer Software Patents under 35 U.S.C. § 101.

I just returned from the AIPLA Boot Camp for young patent attorneys in Washington D.C. It was quite interesting, particularly considering the recent upheaval in the computer and electronic arts due to In Re Bilski (currently on the docket for review by the Supreme Court). In fact, one of the speakers in my break-off group was a senior examiner from the USPTO, and he brought along the interim guidelines from interpreting subject matter eligibility under 35 U.S.C. § 101. As the name denotes, these are interim guidelines provided to the examiners for interpreting claims under 101; at the same time, it was intimated that these are the final guidelines save for any explicit discrepancy with the decision in Bilski and other decisions by the courts and review panels.

On first review, it looks like these guidelines basically codify the presumptions that most patent agents/attorneys and scholars have held concerning what computer technologies are patentable and which are not. Under § 101, patentable subject matter includes a process, machine, manufacture, or composition of matters, with each category subject to a variety of interpretations depending on the technological field being reviewed (in other words, what qualifies as a composition of matter in biotech differs from that in the mechanical field).  Of course, not all technologies fall into one of these categories, and that includes computer programs per se (basically, the algorithmic logic behind a computer program).  This exceptions follows the general rule for patentable subject matter that abstract ideas, mental processes, or laws of nature/natural phenomena are not patentable, as they are not derived from the “work of man” but from a more ethereal plane.  That said, if one produces a  “practical application” from this unpatentable material, deriving some real world product or process from the ether and not merely an abstraction, then patent protection will not be barred by § 101.  “This is because an idea that is tangibly applied to a structure is no longer abstract, and a law of nature or natural phenomenon that is practically applied to a structure is limited to that particular application of the concept.” (Section II.A from interim guidelines above).

As one could imagine, of course, this distinction between the abstract and the tangible is a murky one, defined by creative claim drafting and near-continuous litigation.  Still, some consistent themes have emerged, chief amongst them the requirement that if a claim is directed to a machine or structure, that structure must include meaningful limitations to its performance and scope.  Similarly, if a claim is directed to a process, it must describe a particular transformation of a particular article from one state to another, not merely an “insignificant extra-solution” activity at the end of an otherwise-unpatentable process.

In the context of computer software, that means a patent may be sought only on a particular manifestation of that program (and the logical relations and advances) with real world limitations imposed, not the underlying methodology or algorithmic structure.  In other words, a company like Apple may receive a patent on its implementation on a multi-touch screen device, but not a patent on touch screens generally.

While these stipulations have been largely common sense for most claim drafters, they were apparently not official USPTO doctrine until codified in these guidelines.  Now, examiners have been explicitly instructed to confirm that “the use of the particular machine or the transformation of the particular article imposes a meaningful limitation on the claim’s scope by, for example, being present in more than a mere field-of-use limitation…[or] that the use of the particular machine or the transformation of the particular article involves more than insignificant extra-solution activity.”  In effect, that means patent seekers must bind their technologies to a tangible computer medium, to practical solutions rather than the abstract notions of utility that have led to some consternation in the field; basically, the USPTO is making it clear the distinction between the theory (not patentable) and the implementation (patentable) of a computer program.

And as a developer and an attorney, this makes sense.  If one wants to protect the underlying code or algorithm, tools such a copyright and trade secret exist to provide at least some protection.  Patents should be used to protect particular implementations and tangible products of these more ethereal designs, and attempts to blur this line is one of the key sources behind the community-wide backlash against software patents.   As noted in the quote at the beginning of this article, a patentable computer program should transform a general purpose machine into a specific device performing a specific task, even if such a task can be paused, reset, or terminated at will.  While this distinction should come easily to most designers, one hopes that the Supreme Court is able to appreciate this distinction as well.

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I hope to make this a semi-permanent feature of this site – a collection of links to stories that I find interesting, followed by some brief discussion.  We’ll see how it goes.

Media giant buys Detroit home for reporters to track city

Part of me is truly excited about the possibilities for Time Inc. and the City of Detroit.  I mean, a writer could not ask for more fertile ground from which to craft articles and features.  If Detroit (and by extension, the auto industry) continues to sputter and suffer, then the magazines will be able to follow the oft-repeated Detroit-is-dying narrative from the front row.  Conversely, if Detroit manages to right the ship a bit and build on some of its successes, then Time will be able to report on the rebirth of an iconic American city, as well as the social, political, racial, and economic forces that were at play.  Either way, it would be a fascinating read.

Unfortunately, life rarely lends itself to such clean narratives, and Detroit in particular is unlike any city I have ever known in its ability to confound, endear, and enrage.

Full disclosure – I grew up in Metro Detroit for 26 years, attended the two major state schools (University of Michigan and Michigan State University), and have deep ties to the auto industry (various family members, including my father, have/are working for the Big 3) and Detroit proper (my mother’s whole family grew up near the Boston-Edison area).  So in one sense, my bond to the region and the city in general is quite strong.  At the same time, though, Detroit and the surrounding suburbs are some of the most divided I have ever seen.  This division is due to a myriad of factors, from race riots, shifting employment demographics, to politics and  politicians who perpetuated an “us vs. them” mentality between the city and the surrounding suburbs. Though such divisions exist to some extent in all major cities, Detroit’s is a particularly acrimonious one.

While it is convenient at times to identify yourself as a Detroiter to those who do not know the region, most residents understand the fine line that exists between “real” Detroiters (those who actually reside in the city lines) and the “suburbanites.”  Though this probably is a gross generalization, people who live outside Detroit tend to identify with the city when something positive happens (sports championship, new development, etc.), and disavow any ties to the “D” when the national spotlight highlights one of its failings (such as a corrupt mayor, dilapidated buildings, or political rancor placing stumbling blocks on the city’s road to recovery).  I’ll admit to fitting that suburbanite mold at times, and I think the mindset is pervasive enough that it has really slowed many of the steps that are necessary to repair the city as well as the entire state of Michigan.

My guess is that this discord will become a, if not the, dominating theme in the articles and reports filed by Time.  It is just too easy of a storyline, and one that would catch people outside of Michigan unaware.  And while such a story would obfuscate many of the gains being made by the city in terms of urban development and a potential rebirth, it would also place this city’s past, present, and future in a context that is rarely conveyed in media coverage.  It will be interesting to see how this experiment plays out; like most Michigan residents, I will hope for the best, prepare for the worst, and ultimately be left with something in the middle.

For a song? Try $1.92M

Much has been made about the various measures adopted by the RIAA to halt the rampant sharing of music files across the Internet.  While some have argued that piracy has neither hurt music sales nor stunted creativity [PDF], the RIAA has continued to prosecute individuals suspected of pirating music, with mixed results.  Irrespective of how one feels about the file sharing of copyrighted material, it is certainly jarring to see some of the judgments being awarded to the RIAA against individuals.  It is not uncommon to see thousands of dollars in damages being awarded for a couple dozen mp3s, amounts that seem inconsistent with the current pricing plans of $.99 to $1.29 at places such as iTunes and Amazon.

But when I saw $80,000/song (on only 24 infringing files) being awarded by the jury, I was shocked*.  While I suspect (and there have been inklings) that the RIAA has no intent to collect, it is difficult to find logical justification for this number being handed down for relatively innocuous transgressions.  True, the most recent amendment to the Digital Theft Deterrence and Copyright Damages Improvement Act allows for damages up to $150,000/violation under 17 U.S.C. §504, but this ceiling for statutory damages, I suspect, was designed to punish large corporations and similar entities who “willful[ly] and malicious[ly] injury to the property of another,” such as through mass-produced reselling or derivation from a copyrighted work.  Here, you have private citizens downloading a 20-50 mp3s for personal enjoyment, behavior that lacks the malice (if not the overt willfulness and scale) to injure the property of the copyright holders.  For comparison purposes, a Finnish man was found guilty of sharing over 1,800 music files recently, and was ordered to pay €3,000 in damages.

I do believe that trading copyrighted works without compensating the original holder is technically “stealing”, especially over the Internet via p2p file-sharing programs, torrents, or even just websites/FTP sites.  When someone downloads a song, movie, etc. file using one of these services without the copyright holder’s earlier permission, the holder’s fundamental right to control the distribution of his/her material is being violated, and I have a hard time accepting any justification to the contrary.  That does not mean, though, that draconian punishments are in order for downloading some music to listen to while you are playing around on your computer or working out.  Typically, American courts will allow a maximum ratio of 10:1 between punitive damages and actual, compensatory damages, and usually only when the behavior by the guilty party is particularly reprehensible.  Based on the aforementioned costs of mp3 files and similar digital downloads, it is difficult to imagine actual damages even remotely approaching the $8,000/song necessary for the jury award to meet the acceptable ratio. I suspect that this judgment will be appealed, and that the defendant will argue this award “shocks the conscience” and seek a more realistic damage award, if not a complete reversal of the charges.  But on a grander level, the RIAA, MPAA, and other organizations must reevaluate their methods for dealing with piracy, as it is a losing proposition to continue to throw money into legal cases against individuals who will likely never pay the awards that are ultimately handed down.  Virtually all mass-produced products have an accompanying black market, and usually they are robust enough to survive in spite of measures taken to halt them.   The diffused nature of the Internet, with its ever-changing nodes and inherent anonymity, coupled with technology’s ability to transform the physical media (CDs, DVDs, tapes, LPs) into limitless digital copies, makes policing piracy an even greater task.  If the RIAA et al. still plan on addressing the piracy issue in the courts, they would be best served focusing their efforts on stopping the sources of wide-scale piracy (particular sites/trackers) and not the end-users.  Because all they are accomplishing is further galvanizing their opponents while providing cringe-worthy headlines.

*[Not that the two crimes are even remotely related, but purely for comparison purposes, Cleveland Browns wide receiver Donte Stallworth only received a 30 day jail sentence for vehicular manslaughter, and wound up serving only 24 days.  While civil damages will likely follow, I doubt they will greatly exceed (if at all) the damages handed down in this case.]

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