Bradley M. Kuhn

John Oliver Falls For Software Patent Trade Association Messaging

Bradley M. Kuhn at

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 today 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.

Michael R. Bernstein, Claes Wallin (韋嘉誠) likes this.

Michael R. Bernstein, وليد سعود, Claes Wallin (韋嘉誠), Claes Wallin (韋嘉誠) and 5 others shared this.

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Patents build on top of patents all the time. That's not an argument against software patents. The best arguments I have found against software patents is that software is already covered by copyright and the fact that the claims of a software patent without any source code to go with them do not actually disclose anything of value to the public.

Claes Wallin (韋嘉誠) at 2015-06-29T09:43:29Z

Mike Linksvayer likes this.

I read the end of that aeaweb article, The Case Against Patents. I really liked the list of reforms to gain actual advantages. Especially the point that phasing out patents is not a difficult thing if you have the political will. The value of the patents held today will not erode if you shorten the lifespan of future patents, so nobody's balance sheet is hurt directly, companies will have time to adjust to the new reality. Existing business practices will be hurt of course, adjustment will be essential for the companies affected.

Claes Wallin (韋嘉誠) at 2015-06-29T10:01:00Z

Mike Linksvayer likes this.

@Mike Linksvayer , I don't think there's anything we can do about this problem, other than create a record that there were people who opposed these things. I'm somewhat convinced that those who support software freedom, etc. are simply relegated now to recording their objections to how things went in hopes that future generations will solve these problems. The people who want to control and manipulate Open Source but will not give up their power is too great.

Free Software had a better chance when companies ignored it. Now, it's their plaything they will use against us.

Bradley M. Kuhn at 2015-07-01T00:45:03Z

@bkuhn so by 'politically oppose' you just mean make statements for the record and you don't believe this will have any effect on abolishing software patents. As to future generations, volumes of objections to patents were recorded in the 1800s, almost totally forgotten. Sounds dismal. I'd work in some other field if I were you. IMO the beauty of free software is that it is not merely recording an objection, but blazing a different path.

Your claim that free software had a better chance when companies ignored it is extraordinary. A better chance at what? I urge you to spell this theory out.

Mike Linksvayer at 2015-07-01T16:42:01Z