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Dibs!

The Odd World of Property of the Mind

“It was a team effort!” 

The group assembled nods in agreement.  Most human accomplishment today is the product of some form of collaboration.  Even those of us who like to envision ourselves as super-self-sufficient independents would find ourselves immediately faced with the severity of our solo limitations if dropped into the wilderness naked without tools or supplies.  Everything we do is on the shoulders of others, or the shoulders of shoulders of shoulders of others.  This applies to ideas as well as to the physical world.  Every “original” idea we have is a combination of or an improvement upon the ideas of those who have come before us.  

With Labor Day approaching here in the US, it is interesting to think about the evolution of the concept of “labor.” With manual labor, hourly remuneration makes sense and is easy to track and manage.  In most creative vocations, however, we are selling the labor of our mind – which is more difficult to measure. 

As humans tend to do with most things, we find ourselves wanting to assign the notion of “property” to our ideas.  This idea belongs to me.  That idea belongs to you.  We have some notion that the product of our work should return value to us.  If the product of our work is a physical object, we can barter or sell that object to get our value.  If the product of our work is an idea, however, we have to rely on more esoteric means of extracting value.  For ages, the primary means of doing so was to embody the idea in a physical object.  We printed our novel in a book and sold the stack of paper.  We created our image on canvas and sold the painting.  We recorded our music on vinyl and sold the albums.  As engineer/entrepreneurs, we embodied our ideas into physical inventions and sold our mousetraps.

The practicality of this method has largely come to an end, however.  With the proliferation of digital distribution methods for just about everything, and with the increase in horizontally-oriented product creation, there is a growing segment of the population whose work product is pure information – in a form that cannot easily be made into a saleable object.  Of course, this is why we have concepts like patents, copyrights, and trademarks – so we can get “dibs” on ideas we think we created and protect our rights to our well-deserved return on investment of effort.  

Interestingly, most engineers have chosen a different path of extracting value from their work – akin to manual labor.  We sell our services by the hour to a company – which then picks up the task of turning our ideas into money and/or property.

Legal and cultural means of IP protection are complex and imperfect, however, as we’ve discussed at length in these pages before.  Jim Turley has waxed poetic with his equivalent of John Lennon’s “Imagine” – envisioning a Utopian world where there were no patents, or patent trolls, or patent suits.  Recently, we’ve discussed Google buying Motorola Mobility – presumably primarily to obtain a passel of patents to defend them against anticipated rivals in the mobile space.  The troubles with our patent and copyright system are easy to identify – fish in a barrel, really – but much more difficult to solve.

One of the biggest problems with applying simplistic legal protections to our ideas is the complexity of collaboration.  Teamwork just seems to muddy up the water from every conceivable angle.  Your original idea is an improvement or a variation on somebody else’s equally-original idea, and they don’t want to share.  Or, you and three colleagues were sitting at a table when the “Eureka!” moment happened, and nobody can seem to agree who threw it out there first.  Or, one person came up with the general concept, but a second person did the heavy lifting detail work to make the idea practical.  Sometimes, two people even come up with the same idea independently at almost the same time.  These are not new problems.  Lobachevski’s crack team of posthumous attorneys had to work overtime to clear his name from almost two centuries ago. 

Of course, many of us fall back on the tired old idiom of blaming the lawyers for all our IP woes.  Vilifying lawyers is attractive because it’s easy.  The problem is, it’s wrong.  Lawyers are simply professionals we hire to carry out our wishes.  In most of the legal proceedings I’ve been around, the lawyers are actually the voices of moderation in legal action.  Often, there is a team of plaintiffs crying “sue them into oblivion,” while their attorneys advise them to adopt a position of compromise.  Unlike corporate managers and engineers, lawyers actually are bound by a code of ethics, and they have a professional association that polices those ethics.  If we want to understand the real cause of IP-related lawsuits, we probably should spend some time looking in the mirror.

In fact, if we want an example of a profession that seeks no legal IP protection at all for their ideas – we can look at lawyers.  If a lawyer develops the worlds’ best non-disclosure agreement or employment contract, proves it over dozens of clients, court challenges, and scenarios – any other lawyer can freely copy and re-use the verbiage.  Unlike software or hardware designs that are created and proven by very similar means, legal documents are not copyrighted or patented.  It seems logical that, if lawyers were really the ones stirring up the IP litigation pot, they’d be trying to use similar means to protect their own IP.  They don’t.

Probably the group with the closest culture to the legal profession are software engineers working on open source.  In a similar fashion, they have made the decision that IP is free for all to use, and their services and expertise should be monetized through alternative means.  While this idea seemed radical when it was introduced, it has held up pretty well for several decades now.  An enormous amount of software technology is now open source and available for the benefit of everyone.  A large number of engineers work in open source software – earning comfortable livings without spending any time fighting for their IP rights, thank you very much. 

Open source has failed to get much traction in the hardware world.  Increasingly, technology companies value themselves not by the talent of their engineering team, but by the size of their patent portfolio.  This is a dangerous trend for these companies, for the advancement of technology, and for the engineers who ultimately create that technology.  While it may seem like our current system of IP protection is the only one available, it most certainly is not.  All we have to do is look at related professions and professional cultures to prove it.  It would behoove us as engineers to explore and experiment with the alternatives.  After all, that’s one of the fundamental precepts of our own work.

And remember, it’s not the lawyers’ fault.

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