…a patent system is more desirable for the protection of originators and inventors than a lack of one.

From reading my recent post, you might be tempted to think that I am anti-patent; on the contrary, I am pro-creativity and pro-sharing. I think that a patent system is more desirable for the protection of originators and inventors than a lack of one, but I am critical of the current system and its abuses. My contention is that the patent system as it currently stands is mired in backlog, litigation, and stifles real innovation and creativity. Additionally, I think that if you read my last post, you would see a link desert: I apologize for not taking the time to cite experts in my pursuit of knowledge, since this may have prevented you from seeing for yourself.

Patent Trolls

It seems as though the current patent system has become a mill for mass-producing intellectual property (a problem for the little guy) for the few and its true effectiveness is mostly restricted to those who have the capacity to leverage action through their legal apparatuses. Those who are startups with less cash on hand end up taking out large loans hoping that they will be able someday to pay them back with the return on their patents. It is especially an issue in software development and use of online tools: there is greater difficulty finding and establishing novelty in the Internet age. Due to the fact that the internet moves much faster than other human endeavors and that the culture of sharing is the de facto rule of law online, origination becomes even more difficult to establish. Most patent reviewers are overworked and underpaid which means that unless you have a more persuasive legal team – or do your patent applications in a place more favorable to your kind of patent – you have some serious barriers to obtaining and using your intellectual property.

Creative Commons License

On the other hand, a creative commons license deals away with a lot of this: it is free, attribution is paramount, licensing is almost unlimited, and money is taken out of the picture almost altogether. There are many options to your distribution of an idea, but most permit commercial use by others. With the removal of exclusive commercial use from the equation, the cost of the legal protection falls to almost zero while the ability to regain any of those costs depends completely on the overall benefit the creative project has for the market/community at large. The best products survive, rather than the most legally protected products.

Aside from an overall benefit to consumers in general, this is also better for markets in terms of the group-thinking that occurs between competitors: when innovators see what other competitors are doing, they innovate more rapidly. This leads to more competitors innovating more ideas, more ways of generating revenue with the same tools or sets of tools. This then increases market diversity, robustness, resilience, and creativity. It also means that your ability to leverage money is not as much a factor in deciding whether your idea “wins” or not – your success becomes more dependent on the product and the benefit it has for the market than on your ability to manage money.

CC and the Money

So how does one go about making money in a creative commons system?

This is the great part: there is no limitation on commercial use (unless the individual has specified it), only a limitation that the licensee cannot sell/patent the part that is already under the CC license. In short, you can do what you want, as long as you attribute the originator. That simple.

I know that open sourcing and creative commons licensing is not a silver bullet. Nevertheless, I think it is simply the best set of solutions that have been proposed. I am not expert in patents, intellectual property, or the production of inventions; however, as a scientist, I do understand the importance and necessity of origination and sharing/debating ideas. Without origination, no credit can be given where it is due; without openness, no real innovation can take place either.

More from IP and Open Source expert Lawrence Lessig (here, here, and here)

Stay tuned – this week’s ad hoc Friday will incorporate many of these ideas.

Rick Smith