Open for business

At the beginning of Iron Man 2 billionaire charismatic engineering genius/businessman Tony Stark presents his latest ego with the glaring showbiz vulgarity Americans do so well. The early part of the plot turns on Stark’s refusal to share his suit with the military, in the belief that only he could be trusted to wield its power for the good of humanity. I couldn’t help wondering whether the writers had Steve Jobs in mind.

Now another company has joined the storm of patent infringement claims against Apple. Apple has been instrumental in whipping up that storm, so it’s hard not to feel a little Schadenfreude. At the same time the new suit (the legal one rather than Iron Man’s) – apparently defending a patent on the presentation of summarised information, says all we need to know about the grim state of US patent law.

On a parallel line the continuing spat between Apple and Adobe only demonstrates how commercial enterprises will ride the wave of openness in software when it suits them, and jump off as soon as they can. Openness certainly offers customer advantages, but it goes against the grain of normal business thinking: for all the platitudes about being customer focused, business is driven by the desire to create sustainable competitive advantage – aka a bulwark against consumer power and choice. That’s fair enough: it’s just the platitude that’s dishonest.

Why should software be open? Interoperability is often important, but that could be achieved through standards compliance. Openness is about code being freely available to copy and develop. On the face of it software has fair claims to be a product with genuine IP, and the corporations that develop it have a rightful desire to recoup and protect their investment. Why should software be open or free when books and music (which themselves are increasingly presented via software) are not? (I’ll come back to the possibility of free books in a moment).

The trouble is that corporations have been allowed to patent ideas rather than inventions, and the notion that you can own an idea is a dangerous one. Inventiveness depends on the ability to pick up ideas and take them further.

Invention doesn’t reside at a basic code level (which presumably is why the EU has been reluctant to patent software) but in any case there is a wider principle at stake.

Advocates of genetically modified crops say the science is clear, and the products beneficial. The science may be clear (enough) but the contrary argument is political, not scientific. Do we really want to allow corporations to claim IP in something as fundamental as grain? Is this not ceding dangerous power to an unaccountable entity (the market is a poor substitute for democracy, and as long as corporations continue to argue that their first responsibility is to their shareholders they cannot be trusted with this kind of power). This issue has become all the more acute with Craig Venter’s recent breakthrough in creating synthetic life. Naturally Venter’s lab is applying for patents on its work, and though it seems right that this work should be properly accredited, should someone else who builds on it to create new therapies have to pay Venter for the privilege?

Software falls into the same space. Most obviously if the world’s documents are stored in a proprietary format we’re in trouble, which is no doubt why so many governments have been moving towards the ODF standard. It still needs work, but it’s better than the alternatives.

I’m not being dogmatic about the evils of commercial software. I use word processing software all day every day, and I’ll confess that I use Microsoft Word, as I have for the last 18 years. I have OpenOffice on this machine and I wish I could make it my daily choice. I look at it fondly every time Microsoft does something to irritate me (again), but I always go back to Word.

I am arguing that the continuing existence of free and open software like OpenOffice (and indeed Linux) is important to democracy, and look forward to the point where they do everything I want to do, taking comfort in the reflection that if Microsoft really does irritate me beyond acceptable limits, they offer a viable alternative.

They are viable, and because they are available without cost, they reinforce consumer expectations that the internet is great place to get free stuff. That expectation has all sorts of consequences. Not least it has damaged the music business and it looks set to damage the business of publishing.

Publishing has taken on a dual role for writers. It’s a possible source of income, though increasingly a meagre one for all but a handful of names. It’s also a kind of public ratification, though not a reliable one. Publishing online potentially offers a vast audience, and equally an easier and more efficient way to get to the niche clusters of people who might appreciate your work. But right now we don’t really have a model for this selection or for making money out of it (see my earlier comments on “popular taste”). It may be that most writers have to accept that financial reward will no longer follow from the appearance of the their work in public, which if you think about it was pretty much how things were at least until the 18th century. Some things you just do because you have to. If this means fewer people are drawn to writing that would at least make the job of selection a little easier, but even this is probably not true: just look at the blogosphere.

I think writers can accept this. What’s galling is if other people then make money from your work. I suppose the holders of software patents would say they are defending the same principle, but if we push that analogy it would be more like a writer claiming intellectual property in the idea of sentences that start with a preposition.

Then again since writers have ended up with a tiny part of the cover price of their books, perhaps publishing has brought this woe upon itself. Music publishing has been damaged because in this new world the publishers weren’t contributing much value (who misses them?) but trying to take quite a lot of the available money.

Businesses love to talk about adding value. I hope what we’re seeing with the internet is an opening up of true value, an exposure of where it actually sits. That should encourage true creativity. In the meantime we can only hope that this kind of value judgement will eventually inform the principles of patent law.


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