 Hello everyone, I'm Danny O'Brien, I'm with the Falcone Foundation and the Falcone Foundation for the Decentralized Web and my background is that I've been involved in sort of the activism and policy side of patents for quite a while at the Electronic Frontier Foundation and previously. So this is one of those situations where like you kind of assume if you're one of the last speakers that you can just cross off slides as other people cover them and it gets shorter and shorter and I realize that I picked as a topic something that people have alluded to but nobody has covered in particular depth and now I'm just feeling like there's a sprawling thing that I'm going to do a really bad job of explaining and bringing into the rest of the context. I also want to say this title, Remodulating Frequencies, that's a Star Trek joke and like I'm trying to broaden out of just Star Trek and golden age science fiction things so I'm going to read some Jane Austen but I have not yet come up with a Jane Austen joke. So one of the reasons why this is tricky is because I'm going to be talking about policy and one of the things that people have mentioned is that it's not unique by any means to patents but one of the things we're dealing with here is a thing that is defined by statute and if the statute changes the thing that we're talking about also changes so just to give a concrete example with intellectual property you know you can talk about the contracts and the license and what a token represents and what it grants but the thing that that actually grants and the enforcement mechanism for it or at least the recognition about how the scope of the enforcement mechanism is going to be defined in some kind of statute and those statutes vary from country to country and it's just a mess. Another thing is that those laws and those ideas actually change and they change despite kind of presumption that law is this sort of basal kind of ground that doesn't change and in fact the problem is that it's actually rather slow. It's usually true but isn't necessarily true. The final problem is I'm going to talk about this about how those laws and statutes have changed with patents partly in response to their application and misapplication as digital technology is advanced and one of the problems here is that in this context I'm really often trying to think about these things as incentive models right like okay how do we we're building a thing that will have a you know a mechanism designed to do it and we don't or often don't express policy changes in that way. We have this sort of great man view of history, great person view of history, particularly on local stuff and particularly when we're talking about activism around this. So that's the on the right there that's the change in wheat yields that was as a result of the French Revolution and it had a huge impact in the future and whether that impact was greater than just Napoleon popping up is a little unclear but it's definitely one of those things where you can look at the world in one framing or you can look at the world in another. So classically and I'm going to focus here on for the rest of this talk on software patents because that's one of these sort of like controversial fringes where the law has changed over the lifetime of everybody here. This is the reporting for the first software patent granted I think you can squint I think it's in 1969 this as the headline describes full implications are not yet known and we're still we're still dealing with the implications and we still don't know what those implications are but clearly this is an event right and this is an event that changed the nature of the of the grounding but it was also a response to incentives right like there was an increasing pressure to include the world of software into the world of intellectual property and something that I've actually had to repeat a few times I may speak on and a bit more detail in some other context is that really the idea that intellectual property maps onto software and how it maps is incredibly recent so if you think most people know about software licenses and the GPL and open source licenses and they sort of emerged in like the 1980 late mid 80s it was really only in 1984 ish that it was really statistically determined that software was even covered by copyright so those would have both not existed as things two years before they popped up and also were kind of responses to the fact that there was this kind of enclosure going on it was it was a sort of reaction to that idea so this is a slide that that is often inhabited pretty much all of the conversations I've had about patents software patents do not exist in the same way in the Europe as they do in the US and it was partly for a concerted program of activism between the years 1996 and 2006 the reason why I use this slide a lot is because it's one of those times where there was actually a victory for the people who you know the plucky individual developers and and geeks the big not that fancy yacht in the background is somebody saying look you should support patents because they get for industry and the people in the kayaks are like your little free software advocates sneaking in and this was all done in front of the the parliament in Strasbourg in Europe the plucky people with their little sign one they coordinated very well to defeat this and it had a knock-on effect in the United States of leading to case law like Alice which sort of restricted the range of software patents in in the US again kind of changing the whole ground of the statutes that you might be building a Web 3 solution on this has led to like lots of like we yield like analysis and papers by folks who were really interested in this right so these are a plot of all the kind of actors if you go to this this paper and I'll put in a link when I finish up these slides there's also links to kind of the issues that were topic covered people love this right because it was this big fight that determine stuff in in a public place and that doesn't happen very often in policy I think every slide show has to have this slide in it in this decade that this shall I explain it we can do it in the questions but basically this slide is conveying in kind of Egyptian hieroglyphic mode that the fact that this was an incredibly intense debate about the nature of software patents was because the side who originally produced went to get software patents extended to you thought they had an easy win right you don't have political battles in public unless one side has made a really bad mistake about whether they were going to win or lose right if you absolutely know you're going to lose you don't do it if you absolutely don't know you're going to win the other side doesn't really put up much of a battle so what why did this happen and it's actually because in these areas of discussion there were a lot of defections right there were a lot of moves you would think that something like the edges of intellectual property if hard to define in a new technology would at least be fairly partisan right the that you would have you know Richard Stormman on one side and you would have like Bill Gates on the other and like the lines would be very easily drawn and in fact over the last 20 years in this area people have shifted in their their perceptions so originally IBM was against software patents and actually Alex kind of mentioned that like there was a pretty concerted attempt by IBM to kind of seed the ground with prior art in a lot of these things Bill Gates I put an asterisk by this because Bill Gates is sort of almost infamously known for being against software patents and then switching pro it's actually due I discovered to a misquote that that was made where somebody put a quote from Richard Stormman in Bill Gates's mouth and everybody thought that like he'd switched violently but there was a small there was a small movement right like the Bill Gates basically said this is a really bad situation but we have to defensively collect patents Martin Goats who's a name that isn't quite as famous as Bill Gates but is actually the the subject of that computer world headline he's the person who actually made the first software patent switched to saying it was a bad idea Florian Muller who was is the big name in this I will get an email from him if he ever sees this slide which he probably does will but he's definitely someone who was shifted ground over this time similarly the idea of small inventors as a group has moved over time as small inventors have shifted from people who make little machines to people who are young software developers and as we mentioned with Alice the sort of court system has also shifted in this way I would have a really great picture here of like a Brownian motion right with like little heads of the great men of history like bubbling around but I didn't have time to feed it to Dali and what I mean by that is that this is a moment this is a interface where lots of these individuals are shifting and changing minds why is that I think it's because in the space of software patents and patents apply to technology in general the benefits are unclear and often based on what other people with other patents are going to do right this is why we have patent defense leagues we have this moment where how what you benefit from a patent depends on how big the patent repository is of other people so your status in the in the industry changes whether you think that's a good idea as similarly benefits a heavily situation dependent and I think this is something that people don't recognize with intellectual property which is that the more I look into international property copyright trademarks and the like actually they have different effects in different industries the effect of copyright in the music industry is profoundly different from the effect in the sort of fine art or graphic design space and actually that gets reflected in statute quite a lot the reason why there's a lot of foaming change in intellectual property is because people are always advocating for a different change in the in the benefits and incentives in their own company in their own industry so equilibrium is unstable and alliances are fluid so what does this mean if we're going to build alternatives to patents I think it means that diversity is appreciated right we've talked a lot about how statutorily patents are fixed so you have this idea of 14 years they use a monopoly pricing systems the range of what is covered and what isn't is statutorily or at least judicially defined and that this is all codified in regulation rather than in contracts as much as you might expect so there's a there's an opportunity here if we can think of a way of creating a more diverse the set of agreements between actors we need a clarity of incentives right we need to build an incentive mechanism where it's very clear who is benefiting from what and that we struggle a bit in mechanism design in conveying that our incentives often because it's new I think we would I would say that this is potentially a positive thing because the incentive clarity is really bad in IP right now so the matching isn't that bad and like I say alliances are unstable and I think you might find some unusual bedfellows if you build something that provides an alternative to the existing regime that is it