By Martin Brampton, 6 January 2004 10:40
COMMENT Martin Brampton kicks off the year by proposing a radical approach to intellectual property protection and software. Could this be a way forward...?
Over the season of goodwill and the time for new resolutions, I have been wondering how to make the IT world a better place. Often, I have bemoaned the tendency for a market leader to dominate any software sector, leading to proprietary lock-in and slowing genuine innovation. The dependence of the big software companies on intellectual property rights gave me an idea.
The principle behind intellectual property rights is that those whose effort creates something desirable should have the ability to seek a reasonable return on their work. In reality, it is much more complicated. Few products are wholly innovative. Most rely heavily on past ideas. Moreover, we are entitled to ask about what constitutes a reasonable return.
After all, property rights are not something we are naturally born with. They are something that we, as a society over hundreds of years, have developed for our mutual benefit. By the same token, we are free to redefine exactly what we mean by property rights.
Now it is difficult to juggle with complex sets of rules. To make progress, it seemed to me that we needed a simple step. So I propose that we introduce a new rule saying that any software that takes more than half of a market sector should have its protection limited. To make this effective, the software in question should be made freely downloadable, subject to something like the present open source contract that limits commercial exploitation.
Before anyone shouts Unfair! lets look at some likely implications. The results might well be surprising. For a start, even when software is available for nothing, many organisations prefer to buy it. Linux can be downloaded free. Yet many packaged Linux distributions are sold. Conversely, some sectors of the software market have been largely free. Web browsers have competed for market share, yet almost all have been available without any charge.
Then there is the question of related services. Especially in large organisations, software that has no support is of little use. Even if the software does not cost anything, there will be a need for a variety of related services. It is impractical to suppose that services can be free in most circumstances, since people need to be remunerated for their time. So services would still be a viable source of revenue even where the software was given away.
It would be interesting to see how software vendors would behave under this scenario. One strategy would be to try hard to keep market share below 50 per cent. One way to do that would be to encourage open standards that made it easier for rivals to take at least some market share. Another way would be to specialise in a particular section of a market, say a vertical industry sector.
Another strategy would be to aim for maximum market share and accept that free copies of the software would be legitimate. This is obviously an attractive strategy in some cases, or we would not have the many free products that already exist. A further alternative would be to aim to split software companies into smaller units that could compete with one another, thus reversing the trend to giant software conglomerates.
Outcomes would certainly be different across the world. In rich countries, people are willing to pay for a high level of service. In less developed countries, free software that demanded a good deal of local work would be seen as enormously attractive. We might see quite contrary results in the US and in China. That is perhaps as it should be.
No doubt the basic idea needs refinement. But there is no reason in principle why we cannot make radical changes in the way in which software is protected. The big software companies are not the only people to have a legitimate interest in the question. And if changes worked well for software, maybe we could find ways to implement similar ideas in other sectors?
Comments
There are 10 comments. Join the discussion
1. anonymous
Surely the big companies would just use their lawers to argue about the meaning of 50% of a market sector and while the arguments took place wouldn't allow free distribution.
2. Dominic Tristram
While this is an ok idea, why not just make everything more simple and not allow software patents? This would include all standing patents too of course. It would be possible, despite things going the other way (like the recent European legislation). Couple this with enforced open standards for data exchange and file formats (and if they are proprietary then insist that they must be well documented and royalty-free for other people to use) will ensure that we don't end up yet again with the ridiculous situation we have today, where Word documents are considered acceptable to use for e-government even though they actually require a specific product.
Copyright law is all anyone needs for software. Patents are unjustifiable and have held the industry back needlessly.
3. David Sparkes
In theory it would be easy to measure the market share, but I think that companies would probably focus on ways of accounting and other paper exercises to reduce their reported market share.
Also this would penalise and ultimately dissuade companies from exploring extremely niche markets, which is contrary to the concept of intellectual protection.
I agree that the current system needs a shake-up, though.
4. Cristian Nicola
I had been campaining for the past over 3 years for a similar idea - with not much success i have to admit it, altough things were a bit different.
My idea was envolving around the term of "public property", which would basically assume the transfer of private ownership to public ownership once a product reaches a certain level of "public usage". The product would still be copyrighted by original author, but its availability would be free.
The software industry is just the tip of the iceberg .. we can easely see most certainly similar problems in music industry or movies .. even in parmaceutical industry..
My personal opinion is that we need a radical rethink of the social organization ...
5. Jeremy Chatfield
Define "50% share"! By selecting the definition, you tune products in and out. Who makes the definition? Would Microsoft suddenly find that Linux was a lot more successful than anyone had thought?
Consider Apple. They have 100% of the "personal computer with integrated OS" market. Does this mean that OS/X must be free? Free to run on... what?
I like the thrust of the idea, but as a programmer with marketing experience, I don't think this can work.
6. anonymous
Patents were intended to protect an inventor from competition. Software is so new that even the stuff that will be considered basic in a 100 years, is still being invented. Software is too new for patent protection.
The real key to software success is marketing - including where the software is installed. Most programmers think that "if you build it, they will come" - so their products tend to die when faced with inferior products with better marketing and with a vendor tied customer base.
The bigger IT companies are quite happy to roll right over a smaller company with a patent, because a big company can apply more lawyers to the problem than the small company has total employees. Patents only protect the wealthy large software businesses to protect relatively trivial ideas.
I usually think it is more important to be early to market with proper product (service, support, sales process, reseller agreements and pre-installation) than a patent.
7. Brian Charlwood
Cristian Nicola has the right idea. Once a product is past its 'sell by date', putting it, effectively, into public domain won't diminish its intellectual property. The move would make the product available for users to evaluate, with the possible outcome of purchasing an uptodate version. Sales of software or music products tend to be influenced by the economic climate. Apple has shown that it is possible to commercialise a service that the public had only experienced via the likes of Napster. It must be a possible development, that mainstream software products can be sold in a similar manner - modules could be downloaded, as required, in affordable packs.
8. Paul W
Isn't this how Microsoft got big.
The old (MSDOS) PCs were relatively expensive (cw BBC, Atari, et al) but the professional PC software could be easily copied and used on home based machines. This made PCs a favourite for staff who really began home computing en-mass in the late 1980s/early 1990s.
The PCs evolution to domestic entertainments centres was enhanced by the Windows platform that enabled unhindered software sharing (other than a few lame threats of Property rights) without the need for printer drivers etc.
It was only once the hardware market was firmly established in the defacto standard PC, that the extensive use of built-in copy protection and registration (circa 1993) began to be taken seriously even by large organisations.
Hence, the market has already followed the ideas of the main article's author and is testament to the effectivenes of the scheme's innovation. We all enjoyed it the first time so "Play it again Sam".
9. anonymous
Innovation would surely suffer with this approach. Let's not forget that the advancements in software we have from all sides of the IT battleground over the last several years have been oustanding - massively outstripping developments in other industries. This is driven by talented people, motivated (OK, *partly* motivated) by big salaries which are funded by license sales. Service based businesses do not generate the margins needed to stop the top talent moving to pharmaceuticals or engineering or whatever. Particularly for small companies.
10. Tom Hunt
I, too, am concerned about the definition of "50% share". I have read reliable estimates that better than half of the Windows 98 operating systems installed on computers are illegal. I know in my business I'll see half a dozen like that in a week. Does that mean that Microsoft has less than a 50% share already?
What about the free side of the distribution equation? When, and if, a software vendor has allowed free downloads equivalent to the number of copies sold, what happens then?
And a major flaw in the debate about IP is that "software vendor" is a term that has the subjective conotation of "one". The fact that it takes lots of people lots of time to write and audit millions of lines of code is often overlooked. And if those people weren't being paid, or paid as much, to write and audit THAT code, they wouldn't have time to work on free or open source projects.
A valuable tool in solving the IP debate would be to level the playing field in terms of access to the market and access to platforms to promote interoperability. If a company, such as Microsoft, violates anti-trust statutes and engages in unfair business practices, the sanctions should be meaningful; something that will promote competition, returning the market to fair and open competition. The recent US DoJ settlement with Microsoft is laughable in terms of compensating those barred from the market and in terms of insuring that Microsoft won't continue these practices in the future.
I see no reason to protect digital IP any differently than any other IP, in terms of the law. Every person, or entity, has a right to profit from their creations, from their work. They don't have a right to compete illegally and resolving THAT issue will resolve a lot of the debate about digital IP.
(Making Microsoft give away it's OS will have the opposite effect on the market, at least in it's present state. No new innovation will arise and Microsoft will continue to increase its "mindshare" on the PC. The greater their mindshare, the less incentive there is to develop new products and ideas. Part of the reason Microsoft is so generous to underdeveloped areas is to promote their business. If you grow up on Windows, that's what you'll most likely buy when you can afford to purchase software.)