IP problems with Wiki solutions

(First and foremost: I have to give my buddy Ryan props for laying out some of the fundamental issues facing music and technology this morning, as part of a talk he did at our alma mater, Northeastern. This one is definitely worth the click-through.)

This is sloppy, but I hope engaging:

I had the good fortune to attend a lunch lecture featuring Professor Beth Noveck from the New York Law School. Professor Noveck is a very active member of the IP/tech movement, and founder of Peer to Patent – an approach to a critical part of patent law that uses social networking and (for lack of a better term, and I do find it displeasing) “crowdsourcing” to help get over a fundamental search element in the patent process.

Here’s a quick framing of the problem – quick for brevity’s sake and quick in that it effectively exhausts my knowledge in the patent field. A patent is the exclusive right to use an original invention, device, or process in exchange for the sharing of that information. It’s a fundamental quid pro quo governments strike with inventors: share with us your bright new idea, and for a limited period of time (and in patent law it actually is effectively limited: 20 years) you have the right to exclude others from using your work. In order to protect a patent you have prove a few critical elements: that your patent is of a patentable subject matter, it is non-obvious, it has utility (which is to say you can actual do something with it), and it is novel – there is nothing like it in the industry today. There are other requirements of course, but again: brevity and lack of knowledge.

Fundamental to the patent process is the search and discovery of what patent professionals call “prior art,” a legal term which describes all information available to the public (that is, not a trade secret) surrounding a new patent, which weighs on the patent’s originality. If prior art is found to have expressed whatever this invention is before the inventor does, the work is usually not patentable. It makes sense to have this provision – after all, we should only interest ourselves in patenting new things. So, for example, if I make a claim that I’ve discovered a wild new technology that allows me to make instant photographs with a camera using a fancy developing chemical, there is a process in which the US Government looks at all of the other “instant photograph” technology known to the general public before granting my patent. Here, one might look to the prior art of Polaroid, see that I’m just copying them, and thus deny my patent claim.

Now, by law, the United States Patent and Trademark Office is the group that does this search (in addition to some disclosures made by the applicant), and they have a vast team of people that do this form of research. But the pressures of time require no more than a few hours spent extensively researching any given patent. Clearly, if we could spend more time, more prior art can be discovered, and thus eliminate patents that will later prove dubious, unwarranted, and subject to much litigation (which is expensive from a financial and from a judicial economy perspective), as well as reinforce the knowledge of the particular field so we can say “yes, in fact, this is a new invention” with authority.

Professor Noveck has built a website which helps to augment the research done by the USPTO. In walk Peer to Patent, a way to get professionals to volunteer* time to research patents that are willingly submitted to this crowd-sourced vetting process. An inventor or company volunteers to publicly expose a patent application for the purpose of interested citizens who might have some expertise in this field to submit any examples of prior art which may sway the USPTO in making their decision. Take a look at some of the testimonial videos if you’re confused as to what I mean by that.

[* - "volunteer" may be generous. Many companies, including Microsoft, IBM, and HP, allow their staff to spend time on Peer to Patent on the clock, and Noveck admits a plurality of contributors come from these companies.]

As many have testified before, the power of letting a collective mass tackle these sorts of directed questions should not be understated. As Noveck points out, the experts in many of these fields are coming form the fringes of a business center. I certainly lack the expertise (so far) to be a good USPTO investigator, but I probably know more than the average investigator about the digital music recording market, and could quickly tell if some new invention has been done before. This goes back to the long-tail discussions (and “true fan” discussions and vast amount of what I mentioned in my writings on the Berkman@10 conference. See here and here for starters.

Alas, work keeps me busy, so I’ll have to bullet-point summarize some of the remainder of my reactions, hopefully spurring some discussion (looking at you, Colin and Ryan).

Here are some more little facts about Peer to Patent, before we go to my questions:

The USPTO still has the deciding right to grant a patent or not, so calling it the Wikipedia of patent processes isn’t quite right. The public is not asked to vote as to whether this is novel or not, but rather submit examples of prior art, which are then voted on by the public as to their relevance and authority.

This is not the first example of doing highly-technical research using the a web-based public outcry. Pharmaceutical giant Eli Lilly developed a very similar process for bio research – InnoCentive (based in Waltham, no less). Also, similar programs dealing specifically to patents have been launched in the UK and Japan – only those countries have the added benefit of not needing the submitter’s permission to publicly post the invention for prior art critique.

Since this is a very fact-driven and specific inquiry, Professor Noveck has seen very little spamming or fraud from the site, which does give hope to those who wish to use this approach in addressing other areas where the government is asked to comment in an area of little technical expertise. Perhaps the best example of an aggregate of that is the efforts of the Sunlight Fondation to provide a forum for the public commentary and mark-up of pending congressional bills.

Now, some food for thought. You do the dishes.

I see two natural inquiries, in taking this beyond Peer to Patent and to our world. Or rather, I should say, my world; this is really reflective of my priorities and worldview.
(1) How can we apply this concept to government in general?
(2) How can we apply this to the issues of IP, technology and the music industry? Is the solution to the “RIAA crisis” found in a new croudsourcing venture?

Again, I have to get back to work, so I’m going to outline my answers.

- many, including myself, see this as the greatest challenge of the next Presidency. Be it Obama or McCain, the next president will have to deal with our incredible crisis of leadership which has caused the public to grant near-record-breaking low approval ratings of not only Bush, but of Congress, not to mention a veritable onslaught of horrible decisions – the consequences of which we will be paying off for decades. We’ve seen these past two weeks how bad it can get: when partisan talking points have caused Senators and Representatives to take the floor and discuss a complicated financial bailout without any clear evidence of their understanding of the financial terms laden in the document. It is beyond belief that we have the greatest human capital of knowledge in the world, some of the greatest technology known to humanity, and still our leaders have not found a way to use both in governance. This sort of approach may to be the only way in which to do this, but we need to do something.

[naturally, this is part of the reason why I support Obama - he has a fairly comprehensive technology policy, addressing ways in which we do precisely this. McCain's technology statement is grossly inadequate, and was released only two months ago. Obama had his posted almost as long as he's been in the running - since November 2007. See Lessig on both.]

- as we have seen again and again and again, when dealing with government policy the stakes are so great for private interests that abuse and corruption amount to the single largest fundamental issue plaguing congress today. Put any form of public commentary online, and you’re sure to find it rife with people looking to abuse the system for their private interests. We’ve seen this offline recently with the massive Minerals Management scandal and, off the political charts, the use of Amazon’s ratings to spam against Spore’s DRM. Make any form of public commentary technology and you’ll have to safeguard against abuses to further corrupt. Hell, even the NBC show The West Wing was approached by lobbyists to have their issues mentioned on-air.

- Peer to Patent has seen success in this area, and we should learn from their approach. Naturally, they have seen success and a lack of abuse largely due a focused directive (“bring me evidence of prior art on this new patent”) combined with a highly factual nature (either the “prior art” exists or it doesn’t, and forgeries won’t last the public scrutiny) and topped with the fact that despite all of this persuasion, the end result is only one small part of a larger assessment. Having it policed by adversaries does kind of help in a game theory sense – each side is trying to disprove the other’s patents, but are confied by the laws in which to do so, an thus have a manifest incentive in doing good work. I wonder how many other things could replicate this process.

- Perhaps the reluctance of  to accept this boils down to pride (as evidenced as coming before “the fall” we are all experiencing these days). Our leaders are so arrogant in their ways, they will not accept or perhaps fear to admit to the world that they need help solving an issue. There may be political reasons for that, but they fall short in a utilitarian test – the risk of harming our national standing in admitting our own faults (which I barely accept, if at all, on principle) is nothing compared to the vast benefit by having the smartest people in a field discussing how to best address solutions in that field (as contrasted by the secretive advisors a President or Senator may have in their team – people who are not representing the interests of all at best, and criminally incompetent at worst [see: FEMA, August 2005]). With many of these issues, the experts may lie on the fringe, and we should find them. Here pride can be a weapon – give people the right incentive and I bet the results will be tremendous.

- Money will become an issue both here and in the music problem below. With Peer to Patent, it is acknowledged that major corporations are de facto paying employees to use the system. This is fine when the issue is confined under the criteria outlined above, but how to we address the problems where those with money may simple use that as a muscle to influence outcomes on the website? The example came up today of trying to do a factual inquiry into the benefits and detriments of off-shore drilling. Big oil could hire thousands of “citizens” to chime in saying it is needed (<snark>I think we call them “Republicans” </snark>), but how do environmental NGOs balance this with their equally relevant need and desire to contribute? Could we set up a grant? A bounty? How can we regulate such an open-ended forum?

- In music, how could you form a factual, narrow, and quality enquiry that would benefit from such a system? I actually have spent some time developing a solution with several peers at Northeastern to address a particular problem the industry faces: understanding the tastes and winning the hearts of the college market again. When our beta goes public I’ll definitely spill some pixels telling you all about it. But what else? What are the questions that we can ask of our music establishment?

- The music industry stands to benefit for this sort of group collective of interested, self-governing parties, but we are not yet at a place where the music industry trust or care about each other enough to sit and talk. The saving grace of this may in fact be the institutionalizing of the study of the music industry (as peculiar a thought as that is, thinking back to the early days of rock and roll). By having places like Northeastern’s Music Industry program, we establish bonds with our peers who will become the leaders of the industry in 10-20 years. Maybe today Clive Davis and Cory Doctorow cannot sit down together and hash out their differences of IP theory and copyright enforcement, but I know a lot of friends from NU’s program that are on their way to be record industry heads, while I am tracking career in a more theoretical approach. I respect my peers enough (hoping they feel the same way about me) to sit down and work out our differences to find a common consensus. When we start thinking of people from Public Knowledge, The Future of Music Coalition, The Electronic Frontier Foundation, the Recording Industry Association of America, the National Association of Broadcasters, the American Federation of Musicians, the PROs, and all of the major labels as peers falling on different sides of the same issues, and not trivial adversaries, we can start having open-forum discussions, and we may be able to start to come to a consensus.

So much more to say, but now I have to get back to work. Please, respond if you have an opinion.