Twitter is the new soundbyte, and that's not good.
Wednesday, Aug 03, 2011
The soundbyte is probably the single most destructive factor in politics today, forcing politicians to frame positions into a single sentence, throwing nuance and insight to the wind in favor of something catchy that sounds truthy. Twitter has democratized the soundbyte to be within everyone's reach, so any representative, official or not, can make a catchy assertion of 140 characters or less and not have to worry about a follow-up question or be held responsible for any more nuance than their truthy tweet. Today's case in point? Google published a blog post lamenting the state of patent law and the aggressive nature of Apple, Microsoft and others in bidding exorbitant sums of money for patent portfolios that they would use to extract royalties from other companies including Google and their partners. Microsoft General Counsel Brad Smith struck back with this tweet:
Google says we bought Novell patents to keep them from Google. Really? We asked them to bid jointly with us. They said no.
Ooh, zing! Google's lying! End of story! 18 characters to spare! And of course the pundits (Daring Fireball for example) took it at face value and didn't dive deeper than the sheen of truthiness. So here we go, throwing down a little context. Microsoft's proposed deal was offered back in October of 2010, while several companies were bidding on the Novell patent portfolio. The patent portfolio is valuable to companies in the mobile sector for a few specific reasons:
  1. To have unrestricted license to use the inventions described in the patent.
  2. To be able to take legal action against -- or get licensing revenue from -- other companies who may be violating the patent.
  3. To use as a negotiating chip when other companies threaten to sue you for other patent violations (or anything else).
Bidding in partnership with a competitor is helpful when your goal is to have unrestricted license, or when the company you're climbing in bed with is not one that you want to either take legal action against or protect yourself from. In October 2010, Google's primary motivation was reason #3: To build a defensive portfolio against Microsoft and others. Sharing the patents with Microsoft would nullify that advantage. Isn't it possible that Google's just being paranoid, and wouldn't need a defensive patent portfolio? Let's check in with Microsoft General Counsel Brad Smith again. This time it's July 5th, and Brad is elated at their success in using patent threats to extract licensing fees from a fifth Android partner:
Our Wistron deal today makes for four Android #patent license agreements in nine days. (No need to calculate pi to figure that one out.)
The Wistron deal, like those that came before it, give Wistron license to a number of Microsoft-owned patents including those acquired in the Novell auction. So in retrospect, back in October 2010 Microsoft gave Google the option to contribute hundreds of millions of dollars to help acquire a patent portfolio, or to make its partners pay what will likely amount to $750 million a year in licensing fees for access to the self-same patents. But hey, why care about the whole truth when you can make something that sounds so truthy in 122 characters? By the way, Microsoft, along with Apple, last month spent another $4.5 billion dollars to grab Nortel's patent portfolio. I wonder how many tweets Brad will write gloating about their use of that portfolio to kill its competitors, when he's not too busy tweeting about how he tried to be friends first? Update 8/5: I'd like to thank John Gruber for writing a thoughtful reply to my posts this morning. I can see his viewpoint a lot more clearly in this post than I could in his earlier ones, and only have a few comments: First, that I do see a significant difference between using patents defensively vs offensively. I feel that Google thinks 'empty patents' (not all patents) shouldn't exist, and that a defensive portfolio helps nullify their effect on Google. Proactively suing competitors for violation of such patents is not what someone would do if they think such patents shouldn't be enforced. Second, Gruber states:
What I’m complaining about isn’t Google playing the game, but rather their insistent whining about their competitors only after they lost the game.
What if they're only losing the game, but that game is ongoing? Last month's $4.5b Nortel portfolio is an indication that things are only getting worse, not just for Google, but for an entire industry that's pouring money into an arms race fought within the context a patent system that nearly every party involved has admitted is antiquated and lacking. If companies whining about getting beat up in the schoolyard is what it takes to help sway public opinion on patent reform then I'm proud to have Google stand up and say they hope it gets better. Telling them to grow up, not pout, and 'play like the big boys' certainly isn't the right answer.
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Hi, I'm Kevin Fox.
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