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Weekly Column

Patently Absurd: Why Simply Making Spam Illegal Won't Work

Status: [CLOSED]
By Robert X. Cringely

One hundred years ago this week, brothers Wilbur and Orville Wright made what is generally accepted to have been the first flight of a man carrying powered aircraft. Why is it, then, that we don't fly in Wright airliners? Where are the Wright fighters and bombers? If by some miracle, I was able to scrape together the money to buy an airplane, why can't it be a Wright? The answer is more complex than you'd guess. Pioneers often fall by the wayside as technologies improve. If it were enough just to be the first, then we'd still be using Altairs. But for the Wrights, it was different. They removed themselves from contention through their obsession with patents. It is a lesson that still applies today.

Nobody can deny that the Wright brothers were pioneers. Their use of a wind tunnel helped define the science of aerodynamics and had influence far beyond their time. But their secrecy and litigious nature held back the progress of flying, and eventually lost them their technical leadership. The Wrights flew in 1903. They made a small public announcement 100 years ago, then went silent until 1908 as they worked to solidify their patent position. While they continued to fly from pastures around Dayton, Ohio, the brothers generally did so in secret, waiting for patents to be issued.

When the Wrights finally appeared in public again five years later, first in Washington, DC, and later in France, the performance of their aircraft still astounded the world. But that was it. Once the brothers filed a patent infringement suit against rival Glenn Curtiss, their attention was totally turned to litigation and their aeronautical progress stopped. Curtiss and Wright eventually merged and built aircraft into the 1940s, but the creative energy by that time was all from Curtiss. By then, Wilbur had died and Orville was best known as the man who signed every pilot license. Though their patent was upheld, they didn't in any sense control the industry they had invented.

Their mistake was in putting too much faith in the law and too little in their own ability to be inventive. We see this approach a lot lately. Last week, it was the U.S. voting system overcomplicating itself into a technological horror rather than using human labor to do a better cheaper job. And this week was the signing of the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 -- a law that makes a similar mistake, but from the opposite direction.

I'm not here to defend spam. I HATE spam and have written several columns about how to stop it. So I'm not in principle opposed to this new law with the incredibly long name. I just think it is going to backfire.

The CAN-SPAM Act, as it is generally known, addresses some of the worst problems with spam. It requires that direct e-mailers identify themselves and show in the subject line the nature of their messages. It requires that they give us a way to remove ourselves from mailing lists. It limits mailings to minors. It demands all sorts of perfectly reasonable rules. The only problem is that it won't work because the law can't be enforced.

Say you are running a high-volume spam operation in Russia. Does the CAN-SPAM Act help you or hurt you? On the face of it, it should hurt because this is one of those rare laws that was passed by the U.S. Congress, but as written, applies to everyone on Earth. Read the law: it applies to spammers in the U.S. and abroad.

But in practical terms, it really only applies to spammers who have a physical presence in the U.S. So the Russian spammer, rather than being hurt, is probably helped. His customers never were General Motors and Ford. If they were U.S. companies at all, those companies will quickly move offshore and continue as before. That makes the foreign spam service provider more important to them, not less.

The problem here is that the spammers who are most offensive are the ones whose every activity violates this new law. They can't just reform their behavior a little bit. To fully comply with the law, they would have to shut down. And that's the idea of the law. But how can these spammers be compelled to shut down? They can't be.

So the result will be that the worst spamming moves completely offshore and continues unabated. This will not only lead to lowered respect for the law, it may well lead to more draconian anti-spam measures. If spam can't be stopped at the source, the government will say, it must be stopped en route. It isn't happening yet, and it specifically isn't happening in this law, but the next step is to make ISPs responsible for keeping spam out of your inbox.

This is dramatically different from your asking your ISP to keep spam out of your inbox. The difference between voluntary and mandatory is crucial. If the government can make ISPs filter what you CAN'T see, then next step is for them to filter what you CAN see. I'm always two to three years ahead on these things, but I see spam as an increasing problem and the government response to it will have constitutional implications.

Once we are protected from spam, will we next be protected from offensive instant messaging? And since instant messaging and emerging VoIP telephone systems both use the SIP protocol, is the step after that active filtering of telephone calls? Probably not, but it is possible. So I think we have to be very careful in this war against spam and concentrate less on penalties and more on voluntary defensive measures like the ones I have suggested in the past.

Getting back to the Wrights and their patents, looking back over this year's columns for my upcoming predictions for 2004, I see that I wrote three columns on software patents not including this one. Software patents have become inordinately important for something that 25 years ago we didn't even believe could exist. After several software patent cases had gone unsuccessfully as far as the U.S. Supreme Court, the general thinking when I got in this business was that software could not be patented, only copyrighted. Like the words of a book, the individual characters of code could be protected by a copyright, and even the specific commands could be protected, but what couldn't be protected by a copyright was the literal function performed by the program. There is no way that a copyright could protect the idea of a spreadsheet. Protecting the idea would have required a patent.

Then on May 26, 1981, after seven years of legal struggle, S. Pal Asija, a programmer and patent lawyer, received the first software patent for SwiftAnswer, a data retrieval program that was never heard from again and whose only historical function was to prove that all of the experts were wrong -- software could be patented. Asija showed that when the Supreme Court had ruled against previous software patent efforts, it wasn't saying that software was unpatentable, but that those particular programs weren't patentable.

I have to admit that I am torn about this issue of patenting. I have a friend who works in the highest reaches of a very powerful company that must remain nameless, but rhymes with"Intel." He says that patents are worthless because they can always be worked around. Now for a very big company that rhymes with "Intel" that may well be true. You can reverse engineer, and if that doesn't work, you can always just buy a license. It's the little guys who can't do that. And in this case that means people like me.

I have a patent (doesn't everyone?) granted a few years ago for an idea that made sense to me, but not to anyone else at the time. In the frenzy of doing what I do here, I lost track of that patent. Then the other day, I was looking through a catalog, and sure enough, there's a device that looks a lot my design. I did some searching and found several more companies making similar devices, none of them protected by patents. Companies were infringing my patent! I'm rich!!!

Except I'm not. I called a patent attorney and asked him to take my case. He asked me for a $10,000 retainer. So I called the CEO of the biggest company that I believed to be infringing my patent and asked him if he wanted to buy a license. "No thanks," was his answer.

What to do? I'm in the right, but I can't afford to press my case. The system is against me. I can be like the Wrights and spend the rest of my life fighting over intellectual property issues, or I can get on with my life.

Lacking the Wright stuff, I've decided to go flying instead. My friend at the company that rhymes with "Intel" was right after all.

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