Are Silicon Valley's power brokers political teenagers?

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Journalists and technologists should learn to read the law for themselves

Silicon Valley may not need more lawyers, but it sure needs journalists and technologists who are less naive about the law. You need to assume that _every_ source is peddling self-serving misinformation, and that the _only_ place you can find reliable information about the state of the law is in the primary literature -- to wit, appellate court opinions.

It's all very well to claim that "Congress is owned by Hollywood", and it might even be true in some respects (cf. the Sonny Bono Act and the DMCA); but if you want to know what concrete effects that has (and out of whose skin the costs come), you need to read how things are playing out in court. Not just the self-conscious test cases you get a thousand press releases about (Eldred v. Ashcroft) but the cases brought by vitally interested commercial parties (Lexmark v. Static Control Components). Don't just look at who wins and get a sound bite from each side; read the opinion (dissent and all) and understand what law, if any, was created in that case.

The same goes for reportage in other politically contentious areas such as "software" and "business method" patents. Don't just believe people when they tell you that a couple of Federal Circuit opinions changed the law overnight, or that things are a lot different in the US and Europe. Read the opinions (In re Alappat, State Street Bank v. Signature Financial, AT&T v. Excel Communications) and their parallels in the European Patent Office appeals system (T 1173/97 (IBM), T 0931/95 (PBS Partnership), and similar cases). Decide for yourself whether they are well founded in Supreme Court and European Patent Convention authority. Decide for yourself whether they actually changed the law at all or whether they just provided a timely hook on which to hang a change in attorneys' tactics outside the courtroom.

When reporting on a "reform" proposal, remember that the US legal system is quite complex and that players with a political agenda are very, very good at misdirection. Use your nose -- to pick an example from a couple of months ago, when a seasoned IP lawyer responds to Microsoft's proposal to "rationalize" factual determinations about patents by saying, "Presumably, this new patent court would not sit in Redmond, Washington", the alarm bells in your head should be ringing double-time. Any political player is entirely capable of using problems in one part of the system to justify proposals to monkey with another part that ain't broke -- and that goes for the self-proclaimed altruists with "Free" and "Public" in their names as well.

Above all, scrutinize carefully the motives of people who use the word "we" a lot and say things like "all the issues ... are part of an interconnected whole." Lasting reform is achieved by focusing on one issue at a time, making the case that the existing system has concrete undesirable consequences, and then proposing a change whose expected benefits are equally concrete and testable. You might have to combine several reforms into one legislative package to get it through, but that's a later stage of the process. When enough of the players in the game have to admit to themselves, "yes, this just might suck less than what we have now," you have a chance of getting somewhere you won't regret.

The process is actually a lot like capital equipment sales; winning the same customer three times in a row takes good products, honest numbers, and staying power. You don't win a lot of deals by saying that the other guy's success in the last sales cycle reflects stupidity and corruption on the buyer's part. Odds are the customer just didn't believe you when you said you had the right stuff at the right price.

Cheers,
- Michael

Posted by: mkedwards   Posted on: 07/23/05 You are currently: a Guest | Members login | Terms of Use

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