Last June, the Swiss Press Club held a launch for the Global Innovation Index at which various speakers were invited to talk about innovation. After the head of CERN and the CEO of the Internet Society spoke about how important it was that the Web's underlying technology hadn't been patented, Francis Gurry, the Director General of the UN's World Intellectual Property Organization (WIPO), took the mic to object.
This is what he said. This is what Francis Gurry said. [1]
Intellectual property is a very flexible instrument. So, for example, had the world wide web been able to be patented, and I think that is a question in itself, perhaps the amount of investment that has gone into or would be able to go into basic science would be different. If you had found a very flexible licensing model, in which the burden for the innovation of the world wide web had been shared across the whole user community in a very fair and reasonable manner, with a modest contribution for everyone for this wonderful innovation, it would have enabled enormous investment in turn in further basic research. And that is the sort of flexibility that is built into the intellectual property system. It is not a rigid system...
You can imagine how this statement went over with the Boing Boing folks, and with the Google+ folks who shared Doctorow's post. Doctorow applied the label "stupid" to the post. When John Hardy shared the post on Google+, one commenter wrote:
The sooner these geezers die off and are replaced by young generation the better. But I'm afraid the geezers will cause unrepairable damage before they are dead.
I wonder if some of this is knee-jerk reaction, similar to cases in which people get all bent out of shape when someone claims that the late Steve Jobs was not the perfect human being. So let's take a step back and see what would have happened if the Internet had been patented.
First off, you can't just talk about the patenting of the World Wide Web. The World Wide Web itself was built upon an array of earlier technologies. I've previously talked about the fact that I was on an early version of Usenet in the early 1980s. And Usenet, of course, took advantage of a network communication model that had been built previously. Specifically (although I am simplifying things here), the original technologies that underlie the Internet were developed by a variety of (mostly) public entities, including the Advanced Research Projects Agency within the U.S. Department of Defense, the University of California at Los Angeles, and other institutions. Xerox PARC got involved some time in there, and while they could certainly patent stuff, both Steve Jobs and Bill Gates demonstrated that Xerox didn't do anything to guard their intellectual property. (Which raises a whole separate question - what if the original graphical user interface concepts had been patented, and the patents had been enforced? How would that have affected the fortunes of Apple, Microsoft, and other companies that liberally "borrowed" the concepts of others?)
But back to the Internet. Let's assume that some entity - for argument's sake, let's say that it was Xerox [2] - managed to get around the U.S. Department of Defense, the universities, and everyone else, and secure a patent for some of the underlying technologies that facilitated online communications.
Let's return to Gurry's statement from last June:
...perhaps the amount of investment that has gone into or would be able to go into basic science would be different. If you had found a very flexible licensing model, in which the burden for the innovation of the world wide web had been shared across the whole user community in a very fair and reasonable manner, with a modest contribution for everyone for this wonderful innovation, it would have enabled enormous investment in turn in further basic research.
One thing about patents - the patent holder's prime concern isn't the whole user community, or sharing things in a fair and reasonable manner. The patent holder's prime concern is making money off the patent. I don't know if WIPO existed in the mid 1970s, but my guess is that if some forward-thinking person from WIPO would have gone to Xerox to talk about a fair revenue model, Xerox would have told WIPO to go pound sand.
In fact, I'd be willing to bet that Xerox wouldn't really care about Internet users at all - at least in the way that we understand the term. Xerox, after all, was in the business of producing machines like photocopiers. In fact, one of Xerox's primary business concerns is to ensure that the term "Xerox" is not genericized. [3]
So if Xerox owned all of these technologies, I think that their first thought would be as follows:
How can we use our patent to make our photocopiers work better?
The best option would have been the development of an ability to transmit document images between distant photocopiers. This technology, which would have competed with both Exxon's fax machine and AT&T's plain old telephone service, could potentially be sold to large corporations that bought large amounts of Xerox photocopiers. For example, RCA's NBC subsidiary could use the technology to send important documents between its New York and Los Angeles offices.
By 1980, Xerox's competitors would try to set up their own networks to allow transmission of documents. However, they would have been blocked from duplicating Xerox's method because of Xerox's patent. This would have forced them to develop some workarounds, but for the moment let's argue that Xerox's communication technology continues to be the dominant one.
Tools are often used in ways which the toolmaker never envisioned. After most of the NBC employees had gone home for the day, a few renegade employees (perhaps they were writers for "Saturday Night Live") would have sat on the Xerox photocopiers, revealing a part of their bodies that is normally not revealed in public, and used the Xerox technology to send these images to others - the NBC brass in Los Angeles, people at competing networks (Howard Cosell: "I am perturbed by the juvenile antics of certain individuals at the National Broadcasting Corporation who continue to transmit electronic representations of their posteriors to yours truly"), perhaps the Ayatollah, and others. The "electronic butts" fad would then reach the attention of a variety of officials, including a young Australian legal academic named Francis Gurry, and a young Congressman named Albert Gore Jr. Gurry would worry about the legal ramifications of the trend, and who would ultimately be responsible for any criminal activity that would result from the misuse of the technology - the individuals? their employer? technology developer Xerox?
Gore, on the other hand, would have the power to do something about it. Perhaps legislation may not be the answer, but public pressure on business could certain help. His (then) wife Tipper would agree with him, and would set up an organization called the Parents Image Resource Council, an organization that would ask corporations to voluntarily apply ratings to the images that were transferred by their machines. For example, if NBC agreed to PIRC's rating system, then the next time that Al Franken sat on a photocopier to tell Fred Silverman what he thought of him, the transmission would need to be tagged as "MA" (mature audiences). Of course, if Xerox didn't agree to voluntarily implement such a technology, Tipper could just talk to her husband Al and Congress could mandate the technology.
While all of this controversy was going on, some weirdo pinko commies in the colleges were beginning to wonder if this technology could be used to allow humans - rather than machines - to talk to each other. Around 1983, some physics students at Reed College [4] successfully transmitted a text message [5] from a Xerox within Eliot Hall to a Xerox at UC Berkeley. This spread like wildfire, and within a year people at universities all over the United States were sending text messages to each other via Xerox machines. Some students were even claiming that the technology could be used to hook computers all over the country together - or perhaps even all over the world.
Then things became REALLY controversial.
Francis Gurry, who by now was working for the United Nations, would lament the fact that the students were misappropriating patent technology. Congressman (later Senator) Gore would become so identified with patent protection legislation that he would eventually be known as "the father of patent protection" and would speak of a "patent superhighway" that would allow corporations to quickly prosecute those who violated patents.
And Xerox would take advantage of this added protection. A number of the students would be prosecuted and a number of the colleges and universities would be used. Professor Richard Crandall would end up in prison, despite the fact that no one could tie him to what his students were doing. (NeXT chairman Steve Jobs would refer to Crandall [6] as "the biggest bozo in the US.")
Some middle manager at Xerox would suggest that Xerox develop the technology itself to allow people to communicate with each other, but by then no one at Xerox wanted a part of it. Xerox CEO David T. Kearns sent a memorandum to all offices that forcefully stated Xerox's vision:
There are those outside the company who believe that Xerox technology could be used to link individuals. While this is theoretically possible, Xerox is primarily dedicated to producing enterprise products, not consumer products. Our technology is designed to link businesses together. The consumer business should be left to companies like Procter & Gamble. Xerox serves the enterprise.
So Xerox, by protecting its patent portfolio, ensured that the communication technologies initially developed in the 1960s and 1970s were NOT used to create an "internet" or a "world wide web." So what was the result?
- Individuals could continue to communicate with each other, under the auspices of Compuserve, America Online, and GEnie. Of course, they couldn't create their own content.
- Jimmy Wales became a low-level editor for Encyclopedia Britannica.
- The United Nations, which produced mountains of paper every year, was criticized by Al Gore and others for contributing to global warming. As a result, the UN (and other information-disseminating organizations) paid tons of money to Compuserve, AOL, and the others to host their documents online. Because documents had to be placed on multiple services, rather than being hosted at a single location accessible by everybody, the hosting of documents became very costly. People at the UN and elsewhere were not happy that all of this was entirely in the control of (mostly) American firms.
- In 2005, TIME Magazine (a tiny subsidiary of the giant America Online) ran a story about Silicon Valley people who would write messages, photocopy them on Xerox machines, and post them all over the city. The magazine included an interview with one of these people, a technologist named Dave Winer. Winer and his counterparts as "weed blockers" (later shortened to just "blockers") because their prose would block the view of the weeds in the vacant lots where they posted their essays.
Footnotes (yeah, this post had footnotes):
[1] No, I didn't rip off Aaron Copland's patent. I ripped off his copyright. There's a difference.
[2] I considered using (the old) AT&T as the patent holder in my example, but AT&T's future branding as a monopoly would have complicated the example.
[3] OK, now I've shifted to a discussion of trademarks, rather than patents. Oh well.
[4] Their professor, Richard Crandall, had absolutely no idea what the students were doing. Wink wink.
[5] "Hello world."
[6] In reality, Steve Jobs had a high regard for Richard Crandall. Crandall's thoughts upon the passing of Jobs can be found here.
