A Voice in the Dark

I see this question a lot about songs by some artist or other who has a large catalog of songs available on the Zune marketplace. It frequently comes down to a question of legality.

Imagine that there is a band named The Band. One of the members of The Band - Bob Guy - writes a song. This song may be credited to The Band, or to Bob Guy. If it’s credited to The Band, the record label usually has the right to decide how they distribute it. However, if it’s credited to Bob Guy, the record label needs his permission to distribute it - because only The Band has given them that right. Even though Bob Guy was in the band and took part in that decision, listing him as the author gives him additional rights over that song.

Now let’s imagine Bob Guy goes out and starts a solo career. When he releases an album as Bob Guy, an invisible distinction is created between Bob Guy the band that released a solo album, and Bob Guy the individual person. To the listener reading the credits, there is no difference - indeed, they are the same person. But from a legal perspective, Bob Guy the band and Bob Guy the artist are different legal entities. Any number of subtleties in the contract language can create a legal requirement to get permission from Bob Guy the artist to distribute songs he wrote for Bob Guy the band.

To make matters worse, Bob Guy is probably not his real name. His real name might be Eric Schmidt, and one or more songs may be credited to Eric Schmidt. Even thought Eric Schmidt is Bob Guy the artist and Bob Guy the artist is Bob Guy the band, if the song was written by Eric Schmidt, they need Eric Schmidt’s permission to distribute it.

Confused yet? It gets worse. What if Eric Schmidt is dead?

It is likely that Eric Schmidt has passed on the rights to Bob Guy’s music, both the band and the artist. But Eric may have simply forgotten that once upon a time, he released music written by Eric Schmidt, and in the absence of a legal name change all unestablished rights to that music disappear until it eventually falls into the public domain. Nobody has any legal right to make decisions about it. For 75 years after his death, these songs are in limbo, and cannot be legally distributed except as already contractually established.

So when digital download became available, and those rights had never been negotiated, a significant part of the world’s music library was simply not legally distributable at all until it hit the public domain. Even if Eric isn’t dead, the music industry is finding that after they shit all over Eric’s career as Bob Guy, drove him hundreds of thousands of dollars into debt with “advances on royalties”, and ultimately bought all rights to his music at bargain-basement prices… well, he’s not well-disposed to giving them a fair deal on the digital distribution rights. He wants his piece of what they took from him. Unlike the day he signed away the fruits of his creativity to wipe out a half million dollars in debt, the record label doesn’t have any leverage now. They want something from him, they can’t get it anywhere else, and he’s going to drive a hard bargain before they get anything - because he holds all the cards.

So in general, the reason a song isn’t available for download is usually that there are complicated legal matters around rights, holes in many legacy contracts that can’t be fixed, and bitter artists the industry has abused.

Filed under: Business, Intellectual Property, Media, Music
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Russ Nelson complains that Microsoft’s patent claims about the 235 patents that Linux allegedly infringes are just FUD.

Well, yes. That is how patents work. The value of a patent is in convincing people that what they are building may be interpreted by the court as infringing a patent. The benefit is that these people, if sufficiently convinced, will pay exorbitant amounts of money to the patent holder.

But in order to leverage this, patents - especially software patents - are made so deliberately indistinct that it takes many weeks of examination by experts to determine whether product A is likely to infringe on patent B. In the end, you still don’t know. The most critical parts of the equation are which product, which patent, which court, which lawyers, and which judge.

See, in the ninth circuit, Microsoft’s patent #178 may stand up in an infringement claim against some product - while in the fifth, it may only stand up when two of the seven judges are making the ruling, and even then one of them may only lend credence to an argument that only one specific Microsoft lawyer can productively make. So in the fifth circuit, Microsoft doesn’t want patent #178 tested against that product, because if they get the wrong judge or their lawyer gets sick on the wrong day, they lose. And once you win or lose a patent case, you’re pretty much done. Most judges won’t reverse a ruling without massive public outcry, which means Microsoft doesn’t get a second chance… but the open source world very well might.

There are no winners in patent cases. A patent has the greatest value when nobody is entirely sure how applicable it is. The practical reality is that FUD is the only way patents work at all. If I can make you worry about your product infringing my patent, you may pay me money - even if I know for a fact that no judge would ever take your product off the market. After all, if I want you to pay me $150,000 a year to sell your product, and the alternative is to spend ten times as much money hiring lawyers and fighting a court injunction against selling that product - win or lose - a product with a five to seven year life span is simply not worth that investment. Your business is better off just paying the licensing.

This doesn’t really work in the open source world, because the “business” has no revenue and sells no product and you can’t make people take it off the market. You can’t issue an injunction to put the genie back in the bottle. The legal system simply has no teeth against individuals on the internet. But if you have a massive business that makes millions of dollars distributing open source software… well, you’re a business, and you can be heavily damaged by a legal battle. So any patent holder can walk up to you and say what amounts to “Nice business you got here… be a shame if anything were to happen to it.”

The immediate response you should have is that this is a really shitty thing to do and nobody should be doing it. And you’re right. The problem is that as a patent holder, you have to do it, and as an innovator, you have to patent. If you don’t patent, someone will just file a patent of their own - $1,500 will do it - and come do that to you. And once you patent, if you don’t actively enforce your patent - “nice business you got here” - you can lose it. Once you’ve lost the patent, all the people who are paying you for licenses don’t have to pay you anymore. And when you do the math… $1,500 to get a patent or several million to fight one… the smart business decision is to get patents, because they’re effectively a license to print money. “Hey, I could ruin your business, or you could pay me 15% of your revenue.” What kind of decision is that? Who would choose to be ruined? So if you have a patent and thirty people each pay you $150,000 a year to license it, that’s $45 million a year. People are paying you $45 million annually to walk up to other people and say “nice business you got here”.

See, the problem isn’t Microsoft. It’s the patent system. We need to fix the patent system and put the FUD back where it belongs: on the patent holder. You need to fear the repercussions if your patent is retarded. It should cost you every dime you make from the licensing and more. All the problems Russ cites with the patent claims are not unique to Microsoft’s approach, they are inherent to any patent licensing pitch, because there is simply no downside. If Microsoft’s patent is overturned tomorrow, they don’t have to pay a single dime, and they don’t have to return any license fees they’ve already collected. There is honestly no liability involved in trying to collect more fees.

If they’re asking you to pay, you’re playing Russian roulette: Microsoft can at any time select an example to prove that they can prevail in this fight, and once they start that game, someone has to lose. Pay, and you’re guaranteed not to be the loser. You expose yourself to much more liability by refusing to pay than they do by asking you to pay. The deck is simply stacked against you.

It’s just how patents work. Blame Congress. Microsoft is just playing they game they have to play.

Filed under: Business, Economics, Intellectual Property, Microsoft, Open Source, Politics
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After a long conversation with oceandude9, I’ve come to the conclusion that I’m largely to blame for how UU never went anywhere. I haven’t tried hard enough. Early on in the process, I just threw money at it and expected paid developers to care because they were paid. That didn’t work. Then I tried to do it all myself, relying on the community to guide my efforts. That didn’t work. Then I just worked behind the scenes and tossed betas over the wall whenever they were ready. That didn’t work.

So we’re going to try something new. I’ve set up a forum over at ultimate-universe.com where the project can be discussed. I’ve offered oceandude9 a leadership role there, although he hasn’t yet responded. I’m about to email Garth and make a few proposals aimed at getting him the rest of his money, and hopefully getting him onto the forums to post a little. We’ll see how this pans out.

Filed under: Business, Gaming, Intellectual Property, Software
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A commenter asks why I haven’t released the Ultimate Universe source, when no real progress has been made on the web site since 1999.

But progress has been made on the game. If you were on the mailing list, you saw a travel-only UU engine released in 2003, supporting thousands of dimensions and millions of sectors. But from my FTP site’s logs, I saw that virtually nobody downloaded it. From the discussion on that list, I saw that absolutely nobody provided any feedback on whether it worked and how well.

But what absolutely everybody wanted was for me to hand over the source code. Source code which I bought from Garth Bigelow and Tophersoft Engineering with my own money, before funding development to the tune of six figures and the brink of bankruptcy.

I said, what do you want to see in UU? They said, we want the source code. I said, how can UU stay fresh and competitive in the internet world? They said, it should be open source. I said, what would make UU easier for new players to learn? They said, the source code.

I don’t believe that’s about making UU better. I don’t believe it’s about giving UU to more people so they can play and enjoy it. I believe it’s about random losers wanting to strip Garth’s name off it and use search and replace to pretend they wrote a game. “No, it’s different! Look, it’s the Coalition instead of the Cabal!”

Yeah. Whatever. I don’t trust you people. I’ve tried to involve the community, and the community doesn’t share my vision. Development is now behind closed doors, but there is still development. It isn’t our main focus right now, but it is being done.

UU is brilliant, and was decades ahead of its time. I respect that, and I won’t have it degraded into a massively forked tree of eight hundred shitty variants that add nothing of any value to it. I am working on making UU into something that will make the industry sit up and take notice. Garth deserves that.

Filed under: Business, Gaming, Intellectual Property, Open Source, Programming, Software
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