[dvd-discuss] Re: More On State Sovereignty and Senate Bill 2031, Leahy's "IP" ProtectionRestoration Act

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

(. . . and my response.  -- Seth)


Dave:

This is regarding Jonathan Shapiro's comments on my recent
broadside on Senator Leahy's Bill S-2031 (the "Intellectual
Property Protection Restoration Act") and the issue of the
autonomy of State Universities in the areas that S-2031
addresses.

Jonathan appears to take issue with my analysis, but does
not address S-2031, the issue of the autonomy of the States
and their Universities, and the key role that the 1980
Bayh-Dole Act played in enabling industry to remove the
scare quotes from the term "intellectual property" in
America.  These were plainly the fundamental issues that I
presented.

He begins by stating that I am "flat wrong on some important
points," but then simply proceeds to describe his own
experiences working under the ambit of Bayh-Dole.  I don't
wish to enter this discussion on a sour note, so I have
quoted these comments and the relevant passages from my
original message at the bottom of this email so your readers
can compare for themselves.

Jonathan provides a link describing Bayh-Dole:

> A reasonably clear and non-partisan description of the
> origins of the law and the current state of the
> regulations was created by the Council on Government
> Relations (a university-driven group). Their note can
> be found at:
> 
>     http://www.cogr.edu/bayh-dole.htm

At this link you will find that the Council on Government
Relations practices the same strategy as the industrial
backers of Bayh-Dole, speaking in blanket fashion about
patents in general, while giving short shrift to the
enormous issues raised at the time of the Bill's passage,
regarding the problems with patenting software (not to speak
of patenting biotechnology), issues that are continually
echoed by concerned citizens today -- including Jonathan! 
In its treatment of Bayh-Dole the COGR also simply plays
along with the government's ruse of acting as if it should
ordinarily patent scientific research, rather than having it
naturally enter the public domain -- the better to induce
the universities to choose whether they wish to patent the
research themselves.

Jonathan does something of the same thing: focusing on
issues of "patent management" and exclusive and
non-exclusive licensing of discoveries that are presupposed
as properly being allowed to be proprietary, rather than
taking up the issues associated with making property out of
general scientific knowledge.  These are what he contends
with every day.

Jonathan enumerates three things that Bayh-Dole does:

>   1. It says that Universities may *elect* to retain
>      title (i.e. to own) the patent rights on government-
>      funded inventions.
>   2. It requires the universities to make an explicit
>      decision: if the universities choose to own the
>      rights, then they *must* patent.
>   3. If the university fails to patent, the government
>      agency *may* patent in the name of the United
>      States.
> 
> Item (3), in practice, almost always results in the
> technology ending up in the public domain.

This could not be clearer -- Bayh-Dole made the whole matter
a question of *ownership* of publicly-funded scientific
research, rather than affirming that the point of
publicly-funded universities should be to produce public
fruits, not to allow the government to subsidize research
that may be destined for private ownership.

Bayh-Dole instituted the idea of "intellectual property" in
America.  In doing so, it also effectively removed the voice
of independent academic research from the arena of the
so-called "intellectual property" policy debate, and was a
major factor in laying the groundwork for the affirmation of
business method and software patents in the United States. 
Bayh-Dole was tailor-made to subsidize the interests of the
same major industries that have gone on to sponsor the
international treaties now responsible for such laws as the
DMCA, Senator Hollings' CBDTPA (aka SSSCA), Senator Leahy's
S-2031, and a whole list of laws blind to the public's civil
rights and liberties -- all of which have proceeded through
Congress largely unhindered, until only recently.

It's tremendously important for people to begin standing up
for principle and move away from a pragmatic and/or "wait
and see" outlook on the numerous issues that have been
brought to bear by information and communications
technology.  Hardly any other constituency knows these
implications so well as the researchers working in our
public educational institutions.  Jonathan himself cites
many of the issues that researchers have (and that the
public should have) with Bayh-Dole.

I wonder how many of your subscribers know how important
Jonathan's research is right now?  Jonathan's work on the
super-secure EROS operating system puts him in a very unique
position regarding some of the most important issues that
are rearing their heads lately.  The capabilities-based EROS
operating system for which Jonathan is a lead researcher,
could easily be seen to be the answer to Senator Hollings'
wishes to require that effective content control measures be
built into all computers.  This puts Jonathan in a unique
position, wherein he (in a manner unlike others) can explain
that there are significant differences between the ideas of
local machine security, and content control per se.  This
distinction needs to be described, loudly and publicly,
right at this very moment.

In the field of capabilities-based OSes, security is equated
with "virtualization" -- meaning users of such an OS do not
access hardware directly, but rather must do so by means of
objects with certain "capabilities" properties associated
with them.  These properties enable the system to support
enormously robust secure processing, governing what any
process on your computer may or may not do.

The general counterposition to Hollings' proposal has so far
been that it is so complex as to be technologically
infeasible, or that so long as you can see, hear or read
something on your computer, it's inherently copyable. 
However, unless the civil societal issues associated with
the idea of content control are firmly separated from the
issues of security, the capabilities-based operating system
might easily serve as a basis for a legislative "solution"
to Hollings' "problem."  Legislation could require that all
operating systems must support a certain set of capabilities
properties through the use of a kernel like the EROS OS's;
and then make it illegal to write software that does not
support those properties.

House Representative Boucher recently endorsed a set of
"Cybersecurity" recommendations promulgated by the National
Academy of Sciences.  Of these the only recommendation that
got play in the press was the one suggesting that software
vendors be held liable for security deficiencies, a
suggestion that was generally treated as a way to "get
Microsoft."  However, the other, unmentioned recommendations
include language such as "develop tools to monitor systems
automatically for consistency with defined secure
configurations and enforce these configurations."  Microsoft
and AOL/TIME Warner were both on that panel.  The day before
Boucher endorsed the recommendations, Bill Gates launched
his much-touted new emphasis on security and "trustworthy
computing."  At the following link you will find
similarities noted between Hollings' CBDTPA/SSSCA and the
Microsoft digital "rights management" operating system
patent (yes, Microsoft has such a patent).  The second link
is my blurb on the Microsoft DRM OS patent:

http://www.linuxandmain.com/news/cbdtpa.html
http://cryptome.org/ms-drmos-sj.htm


Jonathan's knowledgeability and savvy in these areas is
great.  However, he seems to think that the fact that
universities get their funding for patents from outside
sources is just a foolish government oversight -- since
universities don't have a budget for patent filing, they
tend to get it externally.  I don't see any reason to see it
with such equanimity.  He describes a dynamic wherein
"technology transfer offices" either take short-term,
self-funding views, or long-term, non-exclusive license
arrangements wherein the university gets "founder shares" in
startups.  The short-term view "Balkanizes" the fruits of
research because it makes it impossible to use it in new
ways down the line.

But he gets really interesting when he explains that in
reality, the faculty person in charge of research tends to
be the one performing the "technology transfer" process --
and then lays out the plain ridiculousness of the whole
setup, wherein a researcher finds him or herself paying
license fees for the research they performed at a public
university, which was paid for by taxpayers!  In the end, he
finds himself the chief negotiator for complex licensing
issues, going back and forth between the private interests
and the university's interests.

This is all perfectly understandable, given the position
that Bayh-Dole puts him and his university in.  One always
gets the best insights from people who are in the "front
lines," so to speak.  Despite the fact that for some reason
he found my pitch on behalf of the independence and autonomy
of scientific research at America's State Universities
somehow unsatisfying, he nevertheless reaches many
conclusions markedly similar to what you hear from those who
resolutely denounce Bayh-Dole on more simple, principled
grounds.

He says America would be better off if software weren't
patentable.  He identifies the anger that many faculty
members feel regarding the Bayh-Dole arrangement, outlining
ways to subvert it.  He describes the consequences for
taxpayers, who are subsidizing research destined for private
ownership.  He explains that exclusive rights are not
necessary to attract investment, since investors regularly
invest in things that are not patentable.

And he does not believe that universities should be in the
"intellectual property" management business, describing the
conflict between the incentive for commercialized research
and the "open atmosphere" of the university, and stating
that the movement of universities from research business to
technology business "is bad for the country and the world!"

Perhaps most notably, he resolves with a plea for "basic
research," suggesting that if Bayh-Dole remains in place,
there may be nobody left to do basic research.

What needs to be assured first is our freedom in the usage
of facts, ideas, and general scientific knowledge.  It's
time our universities took up a civic role in the area of
so-called "intellectual property" policy, explaining in
uncompromising terms exactly why, until relatively recently,
the American legal system held a clear understanding that
"intellectual property" is an internally contradictory and
purely metaphorical phrase.

Those in our public research institutions who see the common
cause that they have with free citizens concerned in general
with issues of technological and online freedom, should
deliver the message to Senator Leahy and the Senate
Judiciary Committee that they do not see the need to
foreshorten their avenues of recourse against ill-conceived
Federal "IP" policy until their interests, and the interests
of the public at large, are truly represented.


Senate Bill 2031 has been referred to the Senate Judiciary
Committee:

United States Senate 
Committee on the Judiciary
224 Dirksen Senate Office Building
Washington, DC 20510
Phone: (202) 224-7703
Fax: (202) 224-9516


Special comments page for "Creative Works in a Digital Age:"

http://judiciary.senate.gov/special/input_form.cfm?comments=1


Bill S-2031 Sponsors:

Senator Patrick J. Leahy (D - Vermont):
senator_leahy@leahy.senate.gov
(202) 224-4242
Fax:202-224-3479

Senator Sam Brownback (R - Kansas):
sam_brownback@brownback.senate.gov
(202) 224-6521
Fax: 202-228-1265
http://www.senate.gov/~brownback/email.html


Seth Johnson
Committee for Independent Technology
http://realmeasures.dyndns.org/C-FIT/Theory1.htm


POSTSCRIPT:

Here are the relevant passages regarding my being "flat
wrong on some points:"

> First, it is telling that Seth Johnson's note doesn't
> bother to give a URL for the law itself. Johnson is flat
> wrong on some important points and he doesn't really
> want his readers to go read the law to find that out.
> Bayh-Dole is officially known as "37 CFR 401". The text
> of the law can be found at: http://www.iedison.gov/37cfr401.html

This doesn't really require rebuttal, except perhaps inasfar
as my comments in this message go.  I certainly included the
entire text of Leahy's Bill in the original package.  Also:

> Contrary to what Seth Johnson says, Bayh-Dole does
> NOT give the industry exclusive licensing rights to
> Federally funded research. The act does three things:
> <SNIP -- I address the 3 items above>

and:

> While a University is free to set any licensing terms
> it wants on patents -- including issuing exclusive
> licenses -- it is not required to do exclusive licensing.

Here are the only passages in my message that I could find
to which these comments might be taken to refer:

> Bayh-Dole undermined the Universities' mission of fostering
> the advancement of general human knowledge, by authorizing
> universities to sell the fruits of their research, despite
> the fact that it is Federally funded and traditionally in
> the public domain.  Bayh-Dole authorized Universities to
> enter into enormously lucrative private contracts with
> big-time "IP" stakeholders such as pharmaceuticals and
> software companies, in which those companies could obtain
> ownership of the fruits of the Federally-funded State
> schools' research.

> [. . .] America needs those who are the
> supposed stewards of academic intellectual freedom to seize
> any opportunity to resist and overturn attempts to make
> property out of the domain of scientific facts and ideas.

Any disinterested reader can plainly see the difference
between my words and Jonathan's characterization of them. 
The Alternet article I cited makes explicit mention of
exclusive licensing:

> In 1980, Bob Dole co-sponsored a bill that gave private
> industry exclusive licensing rights to any promising
> discoveries arising from federally funded research.

Though the most grave implications of Bayh-Dole are about
its making of property out of scientific knowledge, not
merely the question of "exclusive licensing," it is
certainly true that Bayh-Dole *did do* this, and its
*enabling* this to occur is absolutely the key question. 
There are many, many similar articles from the time of
Bayh-Dole's ratification, as well as more recently, that
make this exact same point -- all of which the progenitors
of Bayh-Dole studiously ignored.


-- 

[CC] Counter-copyright:
http://cyber.law.harvard.edu/cc/cc.html