posted by Thom Holwerda on Wed 3rd Apr 2013 13:00 UTC
IconJoel Spolsky is ramping up the fight against patent trolls, the scourge of small companies and startups trying to advance technology in new and interesting ways. Sadly, while Spolsky is right on the money on everything, and even though the fight has to start somewhere, I think he - and others - are doing the industry a huge disservice by focussing entirely on pure patent trolls, without actually addressing the other side of the coin: medium and large business engaging in the same patent troll behaviour.

Spolsky details the despicable and unethical behaviour of patent trolls very well - behaviour we are all all too familiar with by now. Buy a patent and mail a letter that isn't quite extortion but comes close enough to it to small software companies all across the country. Now the trolls sits and waits, as thousands of lawyers advise the small software companies to just pay up, since a court case will be far more expensive.

"What does this sound like? Yes, it's a textbook case of a protection racket," Spolsky notes, "It is organized crime, plain and simple. It is an abuse of the legal system, an abuse of the patent system, and a moral affront." A common misunderstanding among modern sheltered westerners: just because it's legal doesn't mean it's just.

Spolsky takes it all a step further, and turns the spotlight on those who actually do cave in and pay up. I'm a bit torn on this one - I fully understand a small company opting to avoid the courts - but his point is certainly a valid one. Namely, that by giving in and joining the protection racket, you are actually funding the mafia practices of this lowlife troll scum.

In the face of organized crime, civilized people don't pay up. When you pay up, you're funding the criminals, which makes you complicit in their next attacks. I know, you're just trying to write a little app for the iPhone with in-app purchases, and you didn't ask for this fight to be yours, but if you pay the trolls, giving them money and comfort to go after the next round of indie developers, you're not just being "pragmatic", you have actually gone over to the dark side. Sorry. Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.

Spolsky lists a number of ways small developer can band together and fight patent trolls.

The organised fight against these trolls has to start somewhere, but as is often the case in discussions like this, the medium and large players are excused from everything, even though their actions and behaviour in relation to patents is more destructive than that of the small trolls, and actually legitimises the behaviour of these small trolls. If Nokia and Microsoft may run protection rackets, why can't a small troll?

Only early last week did I detail how large companies with huge profits and loads of products - like Nokia, Qualcomm, Huawei, and others - abuse standards-setting processes to extort patent licensing money. All of us are also aware of Microsoft's despicable mafia practices with regards to Android ("Nice phone business you got there. Be a shame if something happened to it."), which it uses to conveniently make sure Android costs about the same to ship as a Windows Phone 8 license.

Motorola - now owned by Google - used its standards patents in legal action as well. Then there's Apple, who abuses the lowest forms of patents, software and design patents, to bully competitors, such as Samsung and HTC, in such a way that phones with keyboards now infringe upon iPhone design patents - leading to the absolutely ridiculous situation that phones released years and years before the iPhone could now technically infringe upon the iPhone's patents.

It's not just large companies - medium businesses engage in the same patent trolling behaviour. Remember the case of Maya, the four year old unable to speak until her parents discovered they could communicate with their daughter through an iPad application called Speak for Yourself? Yes, said iPad application then came under attack from an incumbent competitor, causing Maya to - almost literally - lose her voice, as the application was pulled from the App Store.

I see zero distinction between the behaviour of these medium to large companies and that of patent trolls. In fact, it's worse - these large companies actually influence government policy the world over, have the money to fight out huge legal battles and crush any competitor willing to challenge them by throwing loads of patents against the wall until something sticks, and, to make matters worse, their behaviour legitimises that of the small trolls.

I would take it all a step further and argue that attempting to fight small patent trolls and trying to get laws enacted or changed to try and counter their behaviour is only going to make things worse for small technology companies. By neutering small patent trolls, you are bound to also reduce the combat effectiveness of legitimate small businesses - and thus making it harder for them to fight the Nokias, Qualcomms, and Microsofts of this world. It shouldn't come as a surprise that these large companies are calling for reforms to limit patent trolls - they know damn well this will negatively affect legitimate small businesses as well.

I greatly value that Spolsky - a well-known and accomplished figure in the technology industry - is fighting small patent trolls, and he's obviously a great asset to have on the right side of the fight. However, I'm afraid that by focussing entirely on small patent trolls, we're only going to make things worse. We need a change in thinking not from the little guys, but from the big guys. Sadly, the Apples, Microsofts, Nokias, Googles, and so on, of this world have little to no incentive to fight the status quo, since they stand to lose the most.

Our current IP regime is a stone around the industry's neck, and with the large companies digging themselves in, it's only going to get worse. Focussing on the little guys first could indeed be a good start - but we're going to need more. A lot more.

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