Challenges of the Software Age

This week, we got a chance to delve into some open software news sources. The task was to take two articles from opensource.com and post our personal response and reflect upon the articles argument or thesis. For my first article, I chose one about Louis C.K., the comedian. I am a lover of comedy, and Louis C.K. is one of my favorites. To be honest, I was little surprised to see an article about him even covered in a software magazine, but once I read the article I fully understood.

The article states its premise outright, “The answer to stabilizing content and price is letting artists retain greater control of their work.” This claim is not unheard of and is a sound premise. It is based off of Louis C.K. providing a download of his stand up special for five dollars a pop. This model was used instead of the production model to prove that ease of access will generate revenue, and that the current system of production is antiquated. Using this method, he spent approximately 250,000 dollars. Surprisingly, he generated 1,000,000 dollars in revenue. The author of the article is arguing that this electronic method provided better user-developer relations, and allowed Louis to make better quality comedy because he had control over the entire production.

This argument needs to be heard many times over, and not just in comedy. Software can benefit from this method of thinking as well. Over and over we hear of software losses due to theft through pirating software. However, as the author of the article is saying, the issue can be solved simply through ease of access and a reasonable pricing model. Another great example of this thought is in mobile application development. The rise of easy to afford, easy to install, and mobile apps demonstrates this key principle: price and production affect piracy. The current structure of the software world promotes attacking individuals for sharing files, and punishing paying users with inconvenient protection measures. In the end, removing this methodology helps customer relations by making the paying user feel less punished for choosing the right way.

Also mentioned in the article is price. Price for software can reach upwards of millions of dollars. How much of this cost is purely administrative? How much comes from unnecessary costs such as advertising and publishing? When you go to the store and look at the sixty dollar game, I can tell you a significant chunk of that price is going straight to the publisher, not the developer. By removing these middle men in the modern internet era, we can reduce the cost of software to a point where it is almost non-existent (open source anyone?). We can create better software by fostering a more direct relationship between the end user and the developer. We can create better software for a better price by being in greater control of our development process. This point is what I construed from the article. Developers must always be agile in the field of fast-paced technology. So why not start adapting now?

The second article I chose was called “A cure of the common troll”. By troll, they are referring to patent trolling. With the rising boom in software comes new technology and innovations. These new technologies can all be patented in order to protect the developer’s copyright. Some companies will arise and have risen, whose sole purpose is to collect patents and then sue infringers. This is the art of the patent troll. The results of this trolling are adverse. For one, patent trolling restricts innovation by preventing smaller companies from developing without being sued out of existence. Another notable reason is that many of these patents have been bought, sold, and traded. These patents are not the true inventors but people who buy or acquire these patents from the inventors for profit. By choosing to do so, they are going against the whole concept of a patent to begin with: to protect the inventor. Lastly, many of the patents are dealt with in an archaic manner. A common analogy is that it is like patenting the door knob or the wheel. These are basic universal components that just cannot be patented because they are so basic and necessary to software development.

The article suggests a way to deal with these trolls of the modern age:

“First, create a compulsory licensing mechanism for patents whose owners are not making competitive use of the technology in those patents. Patent owners should be required to declare the areas or products that incorporate the patented technology. All other non-practiced areas should be subject to a compulsory license fee. (A non-practiced “area” would be a market or technology sector or activity in which the patent owner is not using or licensing the invention rights, though the owner may be using the patent in other “areas.”) Licensing rates for patents could be set by patent classification or sub-classification based on industry average licensing rates for each such technology. Again, this would only apply to applications where the patent is not being practiced or voluntarily licensed by the patent owner.
Given the vast number of patents issued, an accused party should have a reasonable, set time after receiving notice of a patent within which to pay for the license going forward. Compulsory licenses are authorized by the treaties we have entered into, and we have significant experience with compulsory licensing of copyrighted works from which to develop an analogous patent mechanism. Uniform rates could be set.
Second, cap past damages for trolls at $1 million per patent and eliminate the possibility of obtaining injunctive relief for infringement of patents that are not in use, or are not used commercially, by the patent owner.
Third, a mandatory fee shifting provision should be put in place where the plaintiff is required to pay the defendant’s reasonable defense fees if the plaintiff does not obtain a better recovery than what was offered by the defendant. (Presently, there is such a cost shifting mechanism in place; however, the relevant costs typically are a tiny fraction of the legal fees in a case.)
Fourth, for U.S. domestic defendants, require that suits be brought in the venue where the defendant’s primary place of business is located.
Fifth, if a party wants more than limited discovery from the opposing side, particularly for electronically stored information (ESI), the requesting party should pay the cost of production. For large technology companies, ESI production alone can cost into the seven figures.”

I am a big supporter of all these concepts. I would also add to the list, that patents cannot be bought or sold, only inherited or renounced (made open to all). By doing so, patent companies would be insolvent and inviable. Each of the other suggestions from the author are great ideas and should be considered in updating our current system of patent application and distribution.

These two articles discussed some hot button issues in not just open source development, but also in all forms of software development. I particularly enjoyed this assignment and found the articles to be both informative and interesting. I look forward to reading more!

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