Friday 26 June 2015 by Bradley M. Kuhn
I've been otherwise impressed with John Oliver and his ability on Last Week Tonight to find key issues that don't have enough attention and give reasonably good information about them in an entertaining way — I even lauded Oliver's discussion of non-profit organizational corruption last year. I suppose that's why I'm particularly sad (as I caught up last weekend on an old episode) to find that John Oliver basically fell for the large patent holders' pro-software-patent rhetoric on so-called “software patents”.
In short, Oliver mimics the trade association and for-profit software
industry rhetoric of
software patent reform rather than abolition
— because trolls are the only problem. I hope the worlds'
largest software patent holders send Oliver's writing staff a nice gift
basket, as such might be the only thing that would signal to them that they
fell into this PR trap. Although, it's admittedly slightly unfair to blame
Oliver and his writers; the situation is subtle.
Indeed, someone not particularly versed in the situation can easily fall
for this manipulation. It's just so easy to criticize non-practicing
entities. Plus, the idea that the sole inventor might get funded
on Shark Tank has a certain appeal, and fits a USAmerican
sensibility of personal capitalistic success. Thus, the first-order
conclusion is often, as Oliver's piece concludes,
maybe if we got rid of
trolls, things wouldn't be so bad.
And then there's also the focus on the patent quality issue; it's easy to convince the public that higher quality patents will make it ok to restrict software sharing and improvement with patents. It's great rhetoric for a pro-patent entities to generate outrage among the technology-using public by pointing to, say, an example of a patent that reads on every Android application and telling a few jokes about patent quality. In fact, at nearly every FLOSS conference I've gone to in the last year, OIN has sponsored a speaker to talk about that very issue. The jokes at such talks aren't as good as John Oliver's, but they still get laughs and technologists upset about patent quality and trolls — but through carefully cultural engineering, not about software patents themselves.
In fact, I don't think I've seen a for-profit industry and its trade associations do so well at public outrage distraction since the “tort reform” battles of the 1980s and 1990s, which were produced in part by George H. W. Bush's beloved M.C. Rove himself. I really encourage those who want to understand of how the anti-troll messaging manipulation works to study how and why the tort reform issue played out the way it did. (As I mentioned on the Free as in Freedom audcast, Episode 0x13, the documentary film Hot Coffee is a good resource for that.)
I've literally been laughed at publicly by OIN representatives when I point out that IBM, Microsoft, and other practicing entities do software patent shake-downs, too — just like the trolls. They're part of a well-trained and well-funded (by trade associations and companies) PR machine out there in our community to convince us that trolls and so-called “poor patent quality” are the only problems. Yet, nary a year has gone in my adult life where I don't see a some incident where a so-called legitimate, non-obvious software patent causes serious trouble for a Free Software project. From RSA, to the codec patents, to Microsoft FAT patent shakedowns, to IBM's shakedown of the Hercules open source project, to exfat — and that's just a few choice examples from the public tip of the practicing entity shakedown iceberg. IMO, the practicing entities are just trolls with more expensive suits and proprietary software licenses for sale. We should politically oppose the companies and trade associations that bolster them — and call for an end to software patents.
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