Changing views toward recorded music

I frequently encounter the following argument, in this case voiced by Terrence Eden:

Imagine, just for a moment, that your Sony DVD player would only play Sony Movies' films. When you decided to buy a new DVD player from Samsung, none of those media files would work on your new kit without some serious fiddling. That's the walled garden that so many companies are now trying to drag us into. And I think it stinks.

I agree as far as it goes. Many people are involved in walled gardens, and they aren't as good as open versions. I am particularly worried about the rise of Facebook, a site that is openly dismissive of rights such as privacy and pseudonymity.

I am less worried about walled gardens for music because I think about music differently. Let me describe two relevant changes.

First, copies of music are now very easy to replace. Aside from the price being low, the time is now instant: you can click on a song on Amazon or iTunes and have that song right now. As such, the value of a stockpile of music copies is much lower than it used to be; I haven't pulled out my notebook of carefully accumulated and alphabetized CDs in well over a year.

I saw the same thing happen a decade ago in a much smaller media market: academic papers. For most of the 20th century, anyone who followed academic papers kept a shelf full of journals and a filing cabinet full of individual papers. That changed about a decade ago, when I started encountering one person after another who had a box full of papers that they never looked into. Note I said box, not cabinet: they had moved offices more recently than they'd gone fishing for a printed copy, so the papers were all still in a big box from their last move.

The second change is that I have been mulling over how a reasonable IP regime might work for music. While copies of music have been a big part of the music market in our lifetimes, it's a relatively recent development in the history of professional music. We shouldn't feel attached to it in the face of technological change. There are a number of models that work better for music than buying copies, including Pandora and--hypothetically--Netflix for music.

Selling copies has not been particularly good for music in our culture. Yes, it provides a market at all, and for that I am grateful. However, it's a market at odds with how music works. Music is transient, something that exists in time and then goes away. Copies are not: they are enshrined forever in their current form, like a photograph of a cherished moment. As listeners, the copy-based market has led to us listening to the same recordings over and over. On the performers side, we have a winner-takes-all market where the term "rock star" was born.

We would be better off with a market for music that is more aligned with performance than with recordings. Imagine we switched to something like Pandora and completely discarded digital copyright. Musicians would no longer be able to put out a big hit and then just ate the money in indefinitely. They'd have to keep performing, and they'd have to compete with other performers that are covering their works for free. I expect a similar amount of money would be in the market, just spread more evenly across the producers. Listeners, meanwhile, would have a much more dynamic and vibrant collection of music to listen to--a substantial public good. Yes, such a scenario involves walled gardens, but that's a lesser evil than digital copyright.

Greg Mankiw on SOPA

Greg Mankiw proposes a productive starting point for discussion about SOPA:

This is an important economic issue for the United States. We are large producers of intellectual property: movies, novels, software, video games, TV shows, and even economics textbooks. If offshore websites find a way to distribute this intellectual property without paying for it, it is as if organized crime were stealing merchandise from a manufacturing firm at the loading dock.

I fully agree. Heck, I make my living in intellectual property.

However, I strongly feel that when there is a conflict, basic liberties take priority. People playing DVDs they own, on DVD players they own, should not be liable for inducing infringement. Teenagers making mix tapes for each other should not be criminals, not even formally. Web sites should not be taken down until the people running them have had their day in court.

We should all find a way to understand that changing technologies mean that some businesses will rise and others decline. However, there are plenty of business models within the parameters of basic freedom. I have suggested controlling performance, and Arnold Kling has suggested controlling aggregates of data. Those are two ideas, and I am sure there are plenty more.

Before we can really try to find the next business models around intellectual property, we must all get used to the idea that the 20th century is neither the beginning nor the end of history. Business models developed during the 20th century made some amount of sense for their time. Technology has significantly improved, especially technology that involves computation and data transmission, and we owe it to ourselves to improve the business models, too.

Posner on digital copyright

Richard Posner takes on digital copyright:

The importance of copyright, and hence the negative consequences of piracy for the creation of new works, are, however, often exaggerated. Most of the world’s great literature was written before the first copyright statute, the Statute of Ann, enacted in 1710. [...] Copyright law needs to be adapted to the online revolution in distribution.

Posner has a radical suggestion that I believe would work out just fine:

So, were Google permitted to provide complete online access to all the world’s books, in their entirety, the gain in access might more than offset the loss in authors’ royalties.

Posner justifies his claim by considering the increase in creativity and in creative works that would result.

I would further justify such a policy by considering what it is going to take to protect copyright in its current form. SOPA, PROTECT-IP, ACTA, and the DMCA are all based on controlling copies. I have little doubt that measures like them will succeed over time and grow stronger. The main way to fight them is more fundamental. Stop trying to prevent copies--which is impossible--and focus more on other revenue models. The models don't even have to be designed as a matter of public policy. Simply remove the props on the old-fashioned models, and make room for entrepreneurs to search for new models.

DNS takedowns alive and well

I wrote earlier that PROTECT-IP and SOPA are getting relatively too much attention. Specifically, I mused about this problem:

First, DNS takedowns are already happening under existing law. For example, the American FBI has been taking down DNS names for poker websites in advance of a trial. SOPA and PROTECT-IP merely extend the tendrils rather than starting something new.

Today I read news that indeed, the FBI has taken down the DNS name for Megaupload.com. I'm not sure the American public is in tune with precisely what its federal government is doing.

The news has other sad aspects than the use of DNS takedowns. A few other aspects lept out for me:

• There has been not yet been a trial. If I ask most Americans about how their legal system works, I expect one of the first things people would say is that, in America, people are innocent until proven guilty.
• There is twenty years of jail time associated with the charges. Isn't that a little harsh for copyright violations? I think of jail as how you penalize murderers, arsonists, and others who are going to be a threat to the public if they are left loose. Intellectual property violations somehow seem to not make the cut.
• It's an American law, but New Zealand police arrested some of the defendants.
• The overall demeanor of the authorities comes off as rather thuggish. For example, they seized all manner of unrelated assets of the defendants, including their cars.

I am glad SOPA and PROTECT-IP went down. However, much of what protesters complained about is already happening.

Joshua Gans on ebook lending

Our approach to copyright is outdated now that we have a wide-spread Internet. What should we do? Joshua Gans proposes an approach based on lending and on tracking usage:

If lending is the appropriate mode for books, then how would the business of publishing look if it is built around lending rather than ownership? So here is my conjecture. All books are read on devices. Imagine that each device has built in a means of tracking what people read and how much. Imagine that it can also do this in a manner that respects privacy. Then the model I have in mind would allow publishers to receive money based on how much of a book people read and to price that at will.

I like the idea. One point of comparison is to the way radio works. In radio, the content is not DRMed, and you don't pay for each song you listen to. Instead, you subscribe in bulk to content and then flip around to whatever you feel like listening to. There are a variety of specific payment schemes on both sides of the arrangement. For the customer, I've encountered payment based on public taxes (Switzerland), by subscription (Sirius Radio), and by listening to ads (broadcast in the U.S.).

For the content producers, I am less clear about what contracts are out there. At least indirectly, however, they are paid more when there are more users listening to them. I imagine that radio has the same sort of marketing research that television does, and that radio stations know how many people are listening to their station and at what times. They then, through mechanisms that are probably kludgy, buy more of the popular music and less of the unpopular music.

It's a good idea, and I would be happy for it to catch on. Copies are trivial to make, nowadays, so the only ways to control copies are rather draconian. Far better to put a good society first and then find business models that work with it.

Paul Chiusano on software patents

Paul Chiusano reminds us why we would conceivably want software patents:

What I find irritating about all the software patent discussion is that patents are intended to benefit society - that is their purpose, "To promote the Progress of Science and useful Arts". But no one seems to want to reason about whether that is actually happening - that would mean doing things like thinking about how likely the invention was to be independely discovered soon anyway, estimating the multiplier of having the invention be in the public domain, etc. Instead we get regurgitation of this meme about making sure the little guy working in his basement gets compensated for his invention.

It's a good reminder. The point of patents is to make society better off.

The standard argument for patents requires, among other assumptions, that the patented inventions require a significant level of investment that would not otherwise occur. As Paul points out, that is not the case for software:

Software patents rarely make sense because software development requires almost no capital investment, and as a result, it is almost impossible for an individual to develop some software invention that would not be discovered by multiple other people soon in the future. Do you know of any individual or organization that is even capable of creating some software "invention" that would not be rediscovered independently anyway in the next five or ten years? I don't. No one is that far ahead of everyone else in software, precisely because there is no capital investment required and no real barriers to entry.

I agree.

I have read many posts where people try to fine tune software patents to make them less awful. I wish we could instead start by considering the more fundamental issue. Do we want software patents at all?

TechDirt on the latest draft of PROTECT IP

Tech Dirt has an analysis of the latest available version of PROTECT IP.

Yesterday, we got our hands on a leaked copy of the "summary" document put together by those writing the new version of COICA, now renamed the much more media friendly PROTECT IP Act. It looked bad, but some people complained that we were jumping ahead without the actual text of the bill, even if the summary document was pretty straightforward and was put together by the same people creating the bill. Thankfully, the folks over at Don't Censor the Internet have the full text of the PROTECT IP Act, which I've embedded below as well. Let's break it down into the good, the bad and the horribly ugly.

I find it hard to care about the nitty gritty details of the approach. The bill is still fundamentally about taking down DNS names on the mere allegation of infringement, and that seems like a very bad idea to me.

Inducing infringement alive and well

Mitch Golden writes, in a good analysis of the legal state of LimeWire's file-sharing software, that inducing infringement was a key part of the October 2010 court case against them:

Interestingly, the court largely sidestepped the technical issues as to whether Gnutella itself had non-infringing uses or not, or whether a Gnutella client can be legally distributed. The court's decision instead turned on evidence submitted by the plaintiffs that LimeWire intended to facilitate filesharing.

I continue to feel that we are much better off leaving content carriers alone. Trying to make content carriers into IP policemen is not going to work out well.

Professors' letter against PROTECT-IP

A number of professors have signed a letter to the U.S. Congress opposing Protect IP:

The undersigned are 108 professors from 31 states, the District of Columbia, and Puerto Rico who teach and write about intellectual property, Internet law, innovation,and the First Amendment. We strongly urge the members of Congress to reject the PROTECT-IP Act (the "Act"). Although the problems the Act attempts to address-–online copyright and trademark infringement–-are serious ones presenting new and difficult enforcement challenges, the approach taken in the Act has grave constitutional infirmities, potentially dangerous consequences for the stability and security of the Internet's addressing system, and will undermine United States foreign policy andstrong support of free expression on the Internet around the world.

The most important point raised in the letter is that it is a violation of free speech. Forgetting the constitutional issue in the U.S., isn't it a bad way for people to interact online? Shutting down a DNS address is much like cutting a person's phone access, something that is simply not done unless the person is about to be arrested. The authors accurately call it an "Internet death sentence". It's far overboard.

The letter also raises the issues with secure DNS, but I believe this is a counter-productive argument. Secure DNS is a gift to anyone who wants to cut off DNS records. Sure, PROTECT-IP as it stands might not work, but all that means is that Secure DNS version 2 will be updated to have a government back door. The problems of PROTECT-IP are not technical.

Most of all, I really wish people could be more creative about digital copyright. You can copy bits, but you can't copy skill. Thus, we would do better to sell skill than to sell the bits that result from them. We can make that change, but expect Hollywood to fight it.

Secure DNS supports PROTECT IP

There is some commentary lately about a paper arguing that PROTECT IP is fundamentally incompatible with secure DNS. This argument is misleading in the extreme. The strategy with DNSSEC is to have root authorities digitally sign DNS records, just like with TLS. As such, it is vulnerable in the same place as TLS. Whoever controls the root servers has ultimate control over what Internet-connected computers will consider to be the truth.

Far from making PROTECT IP more difficult, a hypothetical success of DNSSEC would make it easier. With DNS as it currently works, governments must contend with what, from their perspective, are rogue DNS servers that continue to post "false" (meaning correct) addresses. Under DNSSEC, the rogue server's certificate chains will not check out. Whenever a government orders a domain name to be changed, the root servers will not just issue the new address, but presumably also cryptographically revoke the old one. It would all work as if it were the legitimate domain owner making the request instead of a government.

I don't think the technical arguments about PROTECT IP are convincing. DNS is by its nature a sitting duck. The technical argument I would make is that a global Hierarchy of Truth is not a good approach to security on the Internet. If you don't like PROTECT IP, then you shouldn't like DNSSEC nor DNS as we currently know it.

Given how things technically work right now, however, the best argument against PROTECT IP is simply that we don't want to live that way. Do we really want to live in a world where Sony or Blizzard or MGM can turn off a web site without the site owner getting to defend themselves in court? Is 20th century copyright really worth such heavy handed measures?

Free linking on the web?

Lauren Weinstein has a great article up on the efforts of governments around the world to make Internet material disappear. One tactic for this is to go after search engines:

In Europe, one example of this is the so-called Spanish “right to be forgotten” -- currently taking the form of officials in Spain demanding that Google remove specific search results from their global listings that “offend” (one way or another) particular plaintiffs.

I agree with Weinstein's conclusion:

We are at the crossroads. Now is the time when we must decide if the Internet will continue its role as the most effective tool for freedom of information in human history, or if it will be adulterated into a mechanism for the suppression of knowledge, a means to subjugate populations with a degree of effectiveness that dictators and tyrants past could not even have imagined in their wildest dreams of domination.

The U.S. is in a position to affect that future. Currently, it is gradually inserting censorship backdoors into the Internet at the request of its music and film industries. It's not worth the cost. I freely admit that Hollywood is wonderful, but we should remember that Broadway is pretty cool, too. Unlike Hollywood, Broadway has business models that don't require an Internet overload.

Prior permission for indexing books?

Timothy Lee writes that the agreements backing Google Books are undergoing renegotiation. He argues that Google should seek a fundamental legal principle rather than negotiating a contract via class-action law.

Fair use exists as a kind of safety valve for the copyright system, to ensure that it does not damage free speech, innovation, and other values. Although formally speaking judges are supposed to run through the famous four factor test to determine what counts as a fair use, in practice an important factor is whether the judge perceives the defendant as having acted in good faith. Google has now spent three years looking for a way to build its Book Search project using something other than fair use, and come up empty.

I like this approach better myself. It's better to have simple, common-sense rules about proper rules of engagement than to have a thousand-page contract that nobody has even read in its entirety. For books, part of the common sense rules would include that indexing is allowed, and that abandonware is largely free reign, at least until the owner shows up again.

To contrast, the current approach has Google negotiating a contract that will bind all authors. That seems a little weird given that all authors aren't really present. It doesn't seem like a good fit for contract negotiation. It's one of those rare beasts that is a good fit for our legislative bodies to sort out.

Trial by jury in the U.S.

Pretty sad stuff from the WikiLeaks case:

Pfc. Bradley E. Manning, the Army intelligence analyst accused of leaking government files to WikiLeaks, will be stripped of his clothing every night as a “precautionary measure” to prevent him from injuring himself, an official at the Marine brig at Quantico, Va., said on Friday. Private Manning will also be required to stand outside his cell naked during a morning inspection, after which his clothing will be returned to him, said a Marine spokesman, First Lt. Brian Villiard.

Imagine how he'll be treated if he is actually convicted of anything.

I don't believe that U.S. oversight over most any aspect of the Internet will make things better. I don't expect them to support content carriers in the best of times, and certainly not ones like WikiLeaks that post material embarrassing to the U.S.

DNS shutdowns are up and running

Via Freedom to Tinker, I read:

ICE executed seizure warrants against the 10, ATDHE.NET, CHANNELSURFING.NET, HQ-STREAMS.COM, HQSTREAMS.NET, FIRSTROW.NET, ILEMI.COM, IILEMI.COM, IILEMII.COM, ROJADIRECTA.ORG and ROJADIRECTA.COM, by demanding that registries redirect nameserver requests for the domains to 74.81.170.110, where a colorful "This domain name has been seized by ICE" graphic is displayed.

As I've written earlier, this is a bad way for people to civilly coexist on the Internet. Let me count a few of the ways:

• DNS is a crude weapon. Disabling a domain name is like disabling an entire postal zip code. The collateral damage can easily be larger than the intended damage.
  
  
• This option isn't needed if you convict the defendant, because then you have legal rights against the defendant's business assets, anyway. It's only useful if you are preemptively shutting down a business that you haven't had time to bother taking to court.
  
  
• There's no good legal theory where the U.S. government has authority over .com and .net addresses. If the U.S. has rights over .com and .net, why not Canada, or the state of Florida? Why not the Bahamas?
  
  
• One of the sites, Rojadirecta, has already successfully defended itself in court. In Spain. The U.S. has successfully turned off their DNS record anyway.
  

It all comes across as rather thuggish. To briefly try and outline how we might approach these issues in a more principled and civil way, it might go like this:

• Leave DNS and routing alone, much like we leave speech mostly free. This implies that law enforcement can't do much about people who are broadcasting copyrighted material from the North Pole, but realistically, they can't anyway. They can still convict the native citizens that download it.
  
  
• If a wrong has happened, then try the person or organization that did the deed. Don't go after a DNS provider, an ISP, a router manufacturer, a software author, or any other intermediary who merely provided a general-purpose tool.
  

Software patents help what, again?

Via James Robertson, I read that Interval is suing about a dozen major software companies over patent infringement. I am having trouble finding an original link to the case information, but here's a link to one copy of Interval's opening volley.

Here's the IP Interval is suing over:

The ’507 patent describes an invention that enables a user to efficiently review a large body of information by categorizing and correlating segments of information within the body of information and generating displays of segments that are related to the primary information being viewed by the user.

From this alone, you might thing they have some advanced technique for categorizing and showing related information. No, they really are claiming that the whole idea of showing users a list of items related to the one they are looking at is an Interval invention. For example, here is their complaint about eBay:

Defendant eBay has infringed and continues to infringe one or more claims of the ’507 patent under 35 U.S.C. § 271. eBay operates the eBay.com and Half.com websites, which provide content such as product listings and advertisements to users. In order to help users find additional content that may be of interest, the software and hardware that operate these websites compare the available content items to determine whether they are related. When a user views a particular content item, the eBay.com and Half.com websites generate displays of related content items so as to inform the user that the related items may be of interest. For example, as demonstrated by Exhibit 8, when a user views a particular product listing on eBay.com, the eBay.com website displays both the selected product information (identified by the orange box) and links to other related products (identified by the green boxes). The hardware and software associated with the eBay websites identified above and any other eBay websites that perform this function infringe at least claims 20, 21, 22, 23, 24, 27, 28, 31, 34, 37, 63, 64, 65, 66, 67, 70, 71, 74, 77, and 80 of the ’507 patent under 35 U.S.C. § 271.

The theory behind patents is that, without patent protection, nobody would have invented the idea in question. By offering patent protection, companies will devote resources to research that they otherwise would not have. Can anyone seriously believe, however, that we would have more innovation if all of AOL, Apple, eBay, Facebook, Google, Netflix, Office Depot, OfficeMax, Staples, Yahoo, or YouTube had honored this patent and not shown similar items on their web sites? Does anyone believe that if Interval hadn't "invented" this idea, that nobody else would have?

An additional part of the rationale for patents is that the idea are difficult to develop, that they would only emerge if significant private resources were dedicated to its research. That, too, is hard to believe for this idea. How long did it take the guys at Interval to come up with this idea? Five minutes, maybe?

I have an idea how to stimulate the software industry. Stop issuing software patents.

Two good reads on digital copyright

David Friedman raises an excellent thought experiment: what if the web had come first, rather than printed documents?

If the web had come first, issues of copyright and credit would have applied only to the rare case where someone chose to copy instead to link. Indeed, the relevant laws and norms might never have developed, since the very fact that what you were reading was a quote rather than a link, written by the quoter rather than the quotee, would be sufficient reason not to trust it.

I agree. The model we have is at odds with what makes sense on the Internet, and the Internet is already a much more important vehicle of communication than any print media. We should adjust our law to make sense for the Internet and let print gracefully decline as the preeminent way to share content.

Friedman's post is apropos for my own blog surfing, because I just now read Lawrence Lessig's For the Love of Culture that he posted back in January. It's a rich subject, so let me give two punchlines. Here's one:

Before we continue any further down this culturally asphyxiating road, can we think about it a little more? Before we release a gaggle of lawyers to police every quotation appearing in any book, can we stop for a moment to consider whether this way of organizing access to culture makes sense? Does this complexity get us something we would not get under the older system? Does this innovation in obsessive control produce any new understanding? Is it really progress?

Whether he is overstating things depends on your point of view. If you are Google, then all current law is just a hand shake with the president away from being changed to something else. It took Google to pull off Google Print. Larry and Sergei couldn't have done it alone when they were students, because it violated a thick cobweb of law, regulation, and copyright agreements. It's a disturbing state. Google Print involves an incomprehensible mess of legal agreements, but worse, the next hundred bright ideas about content sharing just aren't going to get off the ground.

How to arrange things differently is a big topic. Lessig has an important starting point in this comment:

We are about to change that past, radically. And the premise for that change is an accidental feature of the architecture of copyright law: that it regulates copies.

Focusing on copies is awkward when, on a computer, copies are ubiquitous. Computationally, copies are actually cheaper than actually displaying the content.

There are a lot of alternate approaches we could use than controlling the right to copy. As two examples, charging for performances and charging for access to a large archive are both possibilities. The first step, though, is to recognize that we have a problem.

Copyright law versus audio archives

The U.S. Library of Congress writes:

"Were copyright law followed to the letter, little audio preservation would be undertaken. Were the law strictly enforced, it would brand virtually all audio preservation as illegal," the study concludes, "Copyright laws related to preservation are neither strictly followed nor strictly enforced. Consequently, some audio preservation is conducted."

More at OS News, which has a link to the 181-page study by the Library of Congress.

Hat Tip to James Robertson.

I'd be a lot more comfortable if the U.S. Congress simply passed reasonable legislation to begin with. I don't hold out hope for it. What does give me hope, however, is that cheap technology indirectly allows all sorts of common-sense copying activity to become de facto allowed.

Whatever paper fantasies Congress puts out, they aren't really going to lock up everyone who makes a mix tape or sets up a home media server. Historically, the tape recorder, the photocopier, and the VCR did wonders for fair use. Going forward, DRM-free Linux and Android computers can work similar magic for digital content.

Against an Internet Blacklist

There is a bill in the U.S. Senate to set up a blacklist for American citizens:

The main mechanism of the bill is to interfere with the Internet's domain name system (DNS), which translates names like "www.eff.org" or "www.nytimes.com" into the IP addresses that computers use to communicate. The bill creates a blacklist of censored domains; the Attorney General can ask a court to place any website on the blacklist if infringement is "central" to the purpose of the site.

To draw an analogy, this is like ordering someone's phone line to be disconnected based on a simple court order. It's not a good plan even if it were limited to sites that were clearly infringing copyright. Shouldn't the site owner get a day in court before their access is cut off?

Needless to say, I don't think we should have a DNS blacklist in America. We shouldn't adopt totalitarian information control just to prop up the current crop of companies that are in industry. Indeed, why should we work so hard to prop up yesterday's business models, anyway? We may as well try to bring back the horse and buggy.

It really was just about Flash

There are a number of platform wars going on right now, on various classes of computers. One of them is over the market for applications on consumer mobile devices. At the OS level, there are Android, iOS, Windows, RIM, and others. There are also cross-OS platforms, such as HTML and Flash. It's a good time to be on the buying side of a mobile device. Extraordinary levels of effort are being put into making each platform appeal to users.

Sometimes, though, the moves are not in consumers' interest. Apple's ban of alternate programming languages on the iPhone is just such a move. Jobs can say all he likes that Flash apps are inherently bad, but few truly agree. A more precise statement is that Flash, many feel, isn't the best possible tool in general. Programmers, however, are more important than the specific tools. I'm sure that the best Flash apps that were banned are better than the worst apps currently being allowed. If the app store simply focused on quality itself, rather than implementation technology, then iPhone users would get an improved selection of apps to install.

Jobs knows this, and so he hasn't really been blocking all alternate languages from his platform. Just the Flash ones:

Other cross-platform compiler makers had had no such trouble, even during the monthslong stretch when the now-obsolete Apple policy had supposedly been in effect. Both Appcelerator and Unity Technologies, which sell iOS programming tools, stressed on Thursday that developers using their compilers had been able to get ported programs into the App Store since April.

Sick stuff. Happily, as word came out, the legality of the approach is starting to fray. Apple needs to either explicitly and specifically block Flash--thus facing anti-trust issues--or drop the bogusly general block. They've now chosen to drop the general ban, which is really the best thing for users.

Patents as Mutual Assured Destruction

The best way I can understand the popularity of software patents is that they protect incumbent companies from newcomers. Large incumbent companies accumulate patents, they use them to litigate against small newcomers who have no patents of their own, and they form patent-sharing agreements with each other to prevent the same thing from happening to them. Occasionally it comes back to bite one of the incumbents, but for the most part they seem to believe it comes out in their favor.

One place this arrangement fails, though, is if one of the incumbents decides not to play for the long term. See, the reason incumbents don't sue each other over patents is that they fear the counter-suit. It's classic M.A.D.: mutual assured destruction.

However, what if an incumbent is on their way out of the computer business, either because they are shifting focus or because they are retiring? Well, in that case, the fear of a counter-suit would be nonexistent, wouldn't it? Count me in as one who thinks Paul Allen's recent actions suggest he is planning to retire, or at the very least get out of computers. My next best guesses are that he is trying to make some sort of point, or that he is simply unsavvy about the software industry. Neither of these sounds especially likely.