For the half-year to 31 December 2014, the IPKat's regular team is supplemented by contributions from guest bloggers Rebecca Gulbul, Lucas Michels and Marie-Andrée Weiss.

Regular round-ups of the previous week's blogposts are kindly compiled by Alberto Bellan.

Tuesday, 7 September 2010

Innovation and Trolling

This particular Kat is strongly of the opinion (although it has to be said with little in the way of solid empirical evidence with which to backup this assertion) that innovation is a good thing. Products evolve, technology pushes ever onwards, and things generally get better. It is therefore with some interest that he stumbled across an interview in Research Magazine with Andy Budd, managing director of a ‘user experience design agency’, in which Budd warns of a “cult of innovation” and the perils that the “innovation delusion” can bring to a company. He explains:

“In large organisations I see the term innovation being bandied around very loosely. When companies are planning their next year’s business plan they’ll say, ‘We’ve got a strategy for innovation,’ but I think often they don’t quite appreciate what innovation is. If you want to be a truly innovative company, first off you have to realise that a lot of the money and time you’re spending might never result in a new product or service, which is often really hard for companies to bear, because they hope that by spending a lot of money in R&D within two or three years they’ll get this massive rich vein of content or products. Innovation doesn’t really work like that. It happens through people spending time looking at markets, looking at how people are using services, and there is a chance that from that something innovative might pop up – but also there is a very real chance that nothing will happen.”
[says the IPKat: there seems to be an assumption here that innovation and invention are the same thing, when it has long been understood that there is a significant distinction between the two...]

Budd continues: "If someone on the board says, ‘This year we’re going to have a strategy of innovation,’ no one’s going to disagree with that. You can’t say, ‘No, innovation’s bad.’ But people don’t understand what it really means, and innovation is not always a key to business success. It’s often a key to spending an awful lot of money and preparing the market for other more successful products. I think this race to be first to market is often a bad move, and a lot of products I’ve seen that are second or third or fourth to market are the ones that understand the market, that see where people have gone wrong and make those improvements."
Says the IPKat: Given that everything concerning the patent system in most states (although a slightly different argument may currently be advanced in respect of the U.S.) is predicated upon the notion that sooner is better (first to file, 20 year term from filing, anchoring of the state of the art, etc.,). Are we mewling ('barking' didn't seem appropriate) up the wrong tree?
Link to the full article here

Whilst on the topic of innovations, the IPKat has also stumbled across another story that has been slowly doing the rounds and which perhaps highlights that, contrary to his initial opinion, not all innovation is necessarily good.

The tale involves a small company from Las Vegas, Nevada, called Righthaven LLC that is being widely proclaimed as the first of a new species: the Copyright Troll. Adopting a similar modus operandi to its patent cousin, this particular species does not itself exercise any creativity (aside from that expended in penning its claim), but rather seeks to enforce the copyright of others: rummaging through the cluttered contents of the web in search of potential infringers to bring to justice. Needless to say, the At present the majority of claims brought by the company relate to the copyrights of the Las Vegas Review-Journal (Nevada’s largest newspaper and no doubt a veritable fountain of new works), but Wired reports that a second newspaper group has also signed up to the service.
So, "Copyright Troll", or legitimate business activity? Is this the way of the future, with publishing groups appointing enforcers to orchestrate the policing of their online works - and does it matter that (as Wired Reports) "Righthaven usually demands $75,000, but will settle for a few thousand dollars"?
Link to original story on OSnews.com: here.
And to Wired's coverage of Righthaven LLC: here
Troll: here
Trolling: here

12 comments:

MTPT said...

How exactly does a "copyright troll" differ from the existing royalty collecting bodies (e.g. PRS and MCPS)?

The only functional difference I can discern from the press reports is that the "troll" is pro-active (which is surely in the interests of the rights owner) and seems to be taking a commercial approach (as opposed to the fixed price - and often highly arbitrary - licence model prefered by rights societies).

Anonymous said...

Being the "first mover" isn't necessarily best. Let someone else have the teething problems, see if the market is ready for the innovation etc. Then copy them (without copying).

Anonymous said...

I think that those that complain about the Copyright Troll overlook its potential benefits in fighting that most ubiquitous plague of the Internet, the Plagiarizing Gnome.

Anonymous said...

Why bother with rights if enforcing those (legal) rights becomes such a stain on society?

Gavin Ward said...

Brilliant article. Love it!

“In large organisations I see the term innovation being bandied around very loosely. When companies are planning their next year’s business plan they’ll say, ‘We’ve got a strategy for innovation,’ but I think often they don’t quite appreciate what innovation is. If you want to be a truly innovative company, first off you have to realise that a lot of the money and time you’re spending might never result in a new product or service, which is often really hard for companies to bear, because they hope that by spending a lot of money in R&D within two or three years they’ll get this massive rich vein of content or products. Innovation doesn’t really work like that. It happens through people spending time looking at markets, looking at how people are using services, and there is a chance that from that something innovative might pop up – but also there is a very real chance that nothing will happen.”

Spot on.

Edison found 1000 ways of how not to create the lightbulb; he didn't stick some "I'm innovative" sticker on his t-shirt and hope that people would believe him.

And innovative is also not changing the "and" in your firm's name to a plus. Primary school students could FIGURE that out.

Looking forward to the next instalment, perhaps with some mention of cybersquatting and the .co mess?

Best wishes
WardblawG

Gavin Ward said...

Dear MTPT
While that appears to be a valid comment, the end-product is different: would a patent or copyright troll, in the strict sense, re-invest in industry? Probably not.

Dave said...

Regarding the previous comments on the "copyright troll": naturally, copyright should be enforced. But, said enforcement should take into account the nature of an alleged infringement. Proceeding straight to legal action against infringers who (often) don't fully understand what they have done, have not profited from their actions, and (in most cases) have not damaged the reputation or earnings of the copyright holder is heavy-handed, to say the least.

In many cases, the copyright holders may even benefit from such "infringements", since it draws attention to their products (when referenced) and therefore acts as free marketing.

This business model clearly represents an attempt to bully amateur publishers who are ignorant about IP and don't have the financial means to defend themselves.

MTPT said...

@Gavin Ward:

I take the point, but I'm not persuaded that "copyright trolls" necessarily stand any different in that regard than collecting societies (or indeed IP lawyers).

"Reinvestment in industry" is a fairly slippery concept (cf. "fairness" in current UK political discourse) but at its most basic this has to mean transferring value from the user of IP to its creator. The only way a "copyright troll" of the type under discussion can make money is by engineering such transfer of value.

Just like a collecting society, or IP lawyer - or, by analogy, a commercial litigator or debt recovery firm - the "copyright troll" is just a transaction cost, but they're offering a new model which competes with those existing ones.

Picking up on your discussion of innovation, isn't this really about a new competitor pursuing an innovative approach to the existing legal framework?

Anonymous said...

The only thing new about the copyright troll is the name. Open source software has been the lurking ground for trolls for several years now. The trolls acquire the rights in some piece of OS code and when a manufacturing company includes the code in its products, they are sued for breach of copyright since their acts are outside the terms of the licence.

Anonymous said...

The Register has also covered the copyright troll story at http://www.theregister.co.uk/2010/09/08/righthaven_sues_candidate/ which includes a link to Righthaven's statement at http://regmedia.co.uk/2010/09/07/righthaven_v_angle_complaint.pdf . When I read it it made my blood boil. How on earth have they got the cheek to say:

50. Ms. Angle’s acts as alleged herein, and the ongoing direct results of those acts, have caused and will continue to cause irreparable harm to Righthaven in an amount Righthaven cannot ascertain, leaving Righthaven with no adequate remedy at law.

51. Unless Ms. Angle is preliminarily and permanently enjoined from further infringement of the Jobs Work, Righthaven will be irreparably harmed, and Righthaven is thus entitled to preliminary and permanent injunctive relief against further infringement by the Defendants of the Jobs Work, pursuant to 17 U.S.C. § 502.

... when they presumably knew all about the infringement when they bought the rights in the first place?

For good measure, they not only want an excessive sum of money off the infringer, they also want to take her domain name off her. How they could possibly think they have the right to do this is beyond me.

However, one possible good point about the case, as several of the Reg's commenters have pointed out, is that the victim in this case is a candidate for the American parliament and so attacking such people is likely to get the law changed so that they can't.

Gavin Ward said...

@MTPT

I agree with your statement "Just like a collecting society, or IP lawyer - or, by analogy, a commercial litigator or debt recovery firm - the "copyright troll" is just a transaction cost, but they're offering a new model which competes with those existing ones." Nice insight.

Re innovation, again I agree that it is innovation over the top of an existing legal structure. But wasn't the light bulb an innovation which took a stranglehold over the already-invented ceiling?

Hilariously bad analogy. One could argue that innovation in the legal market has already hit a ceiling. That person would be very very misguided. ABS and remote access for home-based law firms are going to rip apart the current legal practice structures, in the tenties.

Good debate here gents and anonymous

MTPT said...

@Gavin: I'm making a slightly different point - the "copyright troll" is not changing the underlying rules, he's just showing a different way of working within them.

In terms of changes to rules, I'm not convinced ABSs (or, to a lesser extent, cross-border access) will really make much difference to end users - particularly in this example. There's certainly a difference for those in the industry, but does the end user really care whether they are getting advice from a French partnership, an Irish limited liability partnership, or an English limited company, if they receive the service they need at a price they like? The end user for a "copyright troll" - like the end user of a debt recovery firm - simply ties a neat bow around their problem and passes it over, expecting to receive a payment later - how that's achieved is not something they're particularly bothered about.

Consider Amazon. The paradigm shift was to establish a business which sold books via the internet, and reflect the lower fixed costs in lower prices. This didn't require any changes in the laws governing retailing (indeed, the E-comm and Distance Selling directives trailed in the wake of the first large scale e-tailers). The fact that changing rules later allowed Amazon to reorganise its business to trade across Europe from a small number of entities in tax-efficent jurisdictions went unnoticed by endusers (lawyers and retailers aside) because it didn't change their experience.

A "copyright troll" (whether the underlying business is a subsidiary of a law firm, or a a non-"legal" entity which contracts in legal services) is offering a paradigm shift in business model - one which the NLA, for example, should worry about, but legal service providers (whatever their structure) still have a potential role. Lawyers as a profession probably have less to worry about, unless/until the conduct of litigation and the associated advocacy cease to be reserved/regulated activities.

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