November 2005

The US Patent & Trademark Office just published an application for a patent on a particular storyline, filed by rocket-scientist-turned-patent-agent Andrew Knight [Register article]. If granted (a big if) this could open literary plots to patent protection much like the 1980 Supreme Court case Diamond vs. Diehr opened the way for patents on software and algorithms.

I’ll leave the debate on the legal points to the experts, but I can’t help but imagine all the engineers in the Patent Office trying to decide whether Knight’s plot idea is both novel and non-obvious to one well-versed in the field of story-writing. In a way, the situation is very much like 1980, when the USPTO wouldn’t hire computer scientists to evaluate software patents because they only hired people with “Engineering” in their degree. Sure, the evaluators would catch if someone tries to patent the plot to The Matrix: Reloaded, but will they recognize a plot from an obscure Henry James novel, or one only published in Chinese?

The significance of this lies in how prior art is handled differently by copyright and patent law. Plots are currently covered under copyright law, though unlike patent law there are no “claims” that are written out in advance to specify just how different a new work must be before it no longer infringes. The key difference for prior art is that copyright only protects actual copying of an expression of a work. If you write a screenplay and then I produce an almost identical screenplay without your permission, that’s only illegal if I actually copied your work. If I can convince a jury that I’d never even seen your work and we just happened to come up with the same idea at the same time, I’m off the hook. In fact, in that situation both of us could hold copyrights on our respective versions, regardless of their similarity. Prior art in copyright cases is really just two simple questions of fact: did you come up with your work yourself (i.e. not copy from anyone else), and if so then did I copy your work?

Patents, on the other hand, can be infringed whether or not the infringer knows the patent exists. If you and I both independently create the same invention (which happens more often than you’d think) then whoever filed for the patent first (or in the US, whoever invented first) gets exclusive right to the invention. The flip-side is also true: if the process you are trying to patent has already been published then you can’t patent it, even if you never knew about the prior art. For both parties to a suit, copyright treats originality as anything that came from the author’s head, while patent law treats originality as anything that is literally new under the sun.

Knight’s page discussing the expected value of a storyline-patent application emphasizes the prior-art problem with a rather chilling assertion:

The breadth of Storyline Patent protection available, before the Federal Circuit approves Storyline Patents and the floodgates to the Patent Office open, is far greater than after. Beat your competitors to the Patent Office and be among the first applicants to enjoy examination over limited prior art. [Emphasis mine]

From that quote you might think that the only prior art checked for a patent is that which already exists in the patent database. That may even be true in practice, due to examiners’ limited expertise and resources, but as I already pointed out, for patents prior art includes anything that has ever been published or disclosed. Ever. If you’re patenting a new automobile engine then that’s a relatively bounded problem — the gas engine was invented less than 150 years ago, and the field of engine design is relatively small. Other technical fields are similarly bounded because technological innovation tends to be incremental, building on top of prior inventions like towers extending into a downtown skyline.

Stories, on the other hand, can emerge from anything connected to human experience. If new technology is built on top of the old like a densely-packed downtown, stories are like wind-carried seeds that can take root almost anywhere. This is not to say that every story is unique — on the contrary, after 5000+ years the landscape is fairly crowded. Sure you can set your story of star-crossed lovers on the West Side of New York instead of Verona, but the difference between your new plot and prior art (and thus what your claims could cover) will be pretty narrow. But that’s only true if someone can actually find the particular stories that read on your claims.

I suspect (and certainly hope) that this application will be rejected and the whole question will be moot, but I could very well be wrong: the trend for the last 25 years or so has been towards granting more exclusive rights to content holders, not fewer. Luckily, I also don’t expect a disaster even if we do see storyline patents in our future. Precisely because stories are such a broad field, a 20-year limited monopoly just doesn’t have the same detrimental effect on innovation like a patent on a key technology can. And compared to the lifetime of an author plus 70 years (plus an additional 20 years every 20 years), a single 20-year government restriction on the free market of ideas sounds like a bargain.

So what marketing genius over at Sony BMG decided that rootkitting the PC of anyone who plays their CDs is a good way to attract customers?

Every time I think the recording industry is going to get a clue, they just go further off the deep end. Next thing you know they’ll be secretly bugging our bathrooms to keep us from illegally singing “their” songs in the shower…

Update 11/2/05: Declan McCullagh over at Politech asks an interesting question: Does this rootkit constitute a “technological measure that effectively controls access to a [copyrighted] work?” If so, would removing the rootkit from your own system constitute a violation of the DMCA?