– COPYRIGHT LAWSUIT OVER OPTIONS MARKET SYMBOLS

Wall Street Journal, February 4th, has a brief news item on how a New Jersey company, SFB Market Systems, is suing seven U.S. options exchanges and an options clearing group (including the Chicago Board of Options and Options Clearing Corp.). SFB is alleging that the eight defendants reverse-engineered its copyrighted computer program for creating options symbols (SFB’s “Symbol Manager” program). The illogic of software copyright, once again, since the point of reverse-engineering is to extract ideas, and last I looked, useful ideas are not copyrightable.
You want to protect software ideas – get a patent.

I was bummed as well, but grateful that the folks at GritTV could connect us via Skype video. I will be posting an article soon on that. I thought Laura asked great questions, and she showed a real understanding of the issues when she told us before the debate started… something to the effect that after reading what I sent and what you sent she didn’t know where she stood on the issues. These issues are very thorny indeed.

I am going to try and start an Internet Radio show soon, and would love to have you come on. I am also game for doing Skype stuff again, and exchanging posts on our websites. I hope that we can have a face-to-face debate sometime as well.

-Gene

In lieu of debate, I gave my talk on the fact that patents are unnecessary, and may even hinder innovation, to the Intellectual Property Society at Cardozo Law School. It was very well received by a sympathetic audience. Hopefully we can arrange a real, face-to-face debate some time in the near future. I would truly have enjoyed it, as I enjoyed the brief, televised one.

best,
David

I understand about “framing” (Lakoff style) and debate tactics. But by no means does David’s framing of the initial question give him a guaranteed checkmate. I suspect that if Bill Clinton were managing Gene’s debate team, the first revision he would throw in is: Well that all depends on what your defintion of innovation is is. Are we talking about innovation with a small “i” or are we talking about INNOVATION (all caps)? They are not the same thing you know. Nations who have strong patent systems have INNOVATION while nations who have no patent system at all have innovation with a nano-scaled “i”. Which kind of nation does the USA want to be going forward? That is the question.

I think you are right, patents are clearly not necessary for innovation in the abstract. So we should be able to pretty quickly agree on that point and get on to the question of defining what innovation is desired and whether patents are necessary for that innovation. I would love to discuss antibiotics and vaccines, for example. With the entire world fearful about a deadly pandemic flu, and more and more bacterial infections being resistant to antibiotics the question is not whether patents are necessary for ANY innovation, but rather whether they are necessary for the DESIRED innovation. We all know that without patents there will be no new drugs. There is just not enough people with an extra billion dollars who are willing to donate that to the benefit of society. Even if there were about 1 in 10 drugs actually work (perhaps less) so to get a revolutionary pharma advance you have to plan on spending $10 billion. So at a time when pandemic flu and drug resistant bacterial infections are of such a concern it is reckless to even suggest watering down or eliminating patent rights.

Even if the debate question is “are patents necessary for innovation” I can handle that and still win. If the discussion does not progress to where it needs to go then it would be a very short, boring affair.

-Gene

For an interesting discussion on “promote”, see the Patent Hawk at http://www.patenthawk.com/blog/2009/06/definitely_not.html#comments

Although I’m neither an expert debater or litigator, both know that the person who is able to frame the question to be answered usually wins the debate.

David’s proposed question is his attempt to win the debate before it even begins. To put his question into different contexts:

Are airplanes necessary for a viable transportation system?
Is the interstate highway system necessary for a viable transportation system?
Is electricity needed for an industrial economy?
Is the internet needed for communications?

The answer to all of them are “No.” Similarly, the answer to David’s proposed question is “No” since patents are not ***necessary*** for innovation. Certainly, patents have a far more lengthy history than airplanes, super-highways, electricity, or the internet, but innovation occurred prior to patents. As such, if Gene argues David’s proposed question, he will lose.

On the other hand, you can propose that the question to be answered is “Do patents provide incentives for innovation?” This is a slam dunk win for Gene if this is the theme he works with. I have met few people that didn’t have an idea that they would like to patent (notwithstanding that many of those ideas aren’t patentable). The public, in general, loves the concepts of innovators, inventions, and patents. It embodies the American dream that someone, with nothing, can create something with little capital besides their own creativity and better their life because of it.

That being said, a fairer theme would be a debate over what technologies need incentives and what incentives should they be. This is already a fairly common debate (albeit a little more too technical for most audience members). This is a debate, however, that David does not want to engage in – because to suggest that some technologies may need (or deserve) more incentives than others undermines one of his world views – which is that government intervention in business is bad. For David to argue over the merits of what technologies should receive incentives (and what kind), David would have to acknowledge that the best entity for enforcing those incentives is the government. Moreover, the entity making the decisions as to what technologies receive incentives and the kind of incentives to be given is also the government. This is a result that David cannot support, either explicitly or implicitly.

This leads us back to David’s proposed question. The only way David wins is by advocating the patents aren’t necessary for innovation, and therefore, the patent/copyright system can be eliminated. Of course, the obvious flaw in David’s question-answer-conclusion combination is that the fact “something” isn’t necessary to achieve a particular purpose does not necessary lead to the conclusion that this “something” isn’t desirable in achieving that particular purpose.

I think it is wonderful that the two of you can come together for civil discourse on this subject.

As a first step you should each provide the other with your educational backgrounds. Often I find that disagreements arise from having first and foremost framed our world views in different ways.

The other day I was listening to a journalist on the radio explaining about the satellite they just crashed into the moon. I went into a literal howl when I heard him tell the public that, if they find water, H2O; on the moon, they can split the H2O to get oxygen to breath; and get this, to use the hydrogen for “energy”. OMG!

Now of course a liberal arts major will stare at me as if I am a mad man for cracking up over this journalist’s explanation. After all, educated liberal art majors well know that hydrogen can be used as a fuel. What is that fool laughing about? But that’s the point. We come to the table with different educations, different understandings, and different ways of framing things.

Good luck gentlemen.

I agree that would make an excellent question to lead off and frame the debate. I personally think the answer is yes, patents are definitely necessary if we want to have a high level of innovation. If we are OK with little innovation then they are not so necessary at all. I also think at a time when there is so much alarm regarding swine flu and a deadly pandemic it makes little sense to be chipping away at incentives.

Where I personally would love for discussion to go to is this… if patents do not cause access problems, as the HHS report concludes, then it would seem that a patent in and of itself is not a problem. I think the more enlightening question is something like “how long a term is necessary for innovation on the desired levels?”

I am really looking forward to this. I think you and I could come to some understandings and agreements that will allow for the exhibition of opposing views. What I would love to see is energy spent on figuring out where there is commonality and where the divergence starts. The point of divergence, in my opinion, needs to be more clearly defined.

-Gene