Should we Boycott Amazon.com
The recent bombarding of the Yahoo, HMV, E-Bay and Amazon.com web sites with millions of "requests" comes amidst growing tension between the Internet's hacker and e-business communities. This is not to suggest a connection, but a climate. One of the most heated topics of disagreement involves the patenting of business practices used on commercial web sites. Things heated up last December when Richard Stallman, president of the Free Software Foundation, called for a boycott of Amazon.com, the highly successful on-line bookseller. Amazon's cyber-sin? It patented "One-Click Shopping," its method for shopping on-line. Not only did Amazon patent it, the company actually defended it by suing another on-line bookseller, Barnes & Noble, for alleged infringement. Amazon has secured a preliminary injunction. The boycott has attracted some support, though how much is hard to tell. Who's right? Who's wrong? And why?
First, Mr. Stallman, President of the Free Software Foundation and an early Linux proponent, confused the issue by imprecisely describing just what Amazon had patented. In his Linux Today article, he appears to accuse Amazon of having patented software, specifically a "cookie," a small bit of computer code downloaded into your computer when you visit web sites. Amazon's One-Click cookie tells the company who you are - if you've bought before - eliminating your having to re-send your address and credit card number. In fact, Amazon patented its method of using cookies to identify previous buyers, not the technology for doing so.
Mr. Stallman accuses Amazon of plotting to monopolize an idea so simple and fundamental that the failure to disseminate it freely will slow the growth of e-commerce. To Mr. Stallman, such action, even if legal, is unethical, if not downright immoral, hence the call to boycott. He also criticizes the scope of all such Internet patents. The US Patent and Trademark Office (USPTO), he argues, uses too low a standard in granting patents for business practices. He sees such "inventions" as neither new nor non-obvious, two of the three patent criteria. As for the third, usefulness, he asserts that software in general is most useful as non-proprietary knowledge.
For the record, Amazon holds a legally valid patent. It demonstrated to a patent examiner's satisfaction that the One-Click idea was new, that it was not obvious from what was known more than a year before the date of application, and that it had a use. To invalidate the patent, all someone has to do is prove that the idea was known or in use a year before Amazon's patent application filing date of September 12, 1997. Computer friends contend prior examples abound. Indeed, the USPTO's own web site appears to use a form of "One-Click Shopping."
Is Amazon's behaviour, nevertheless, unethical? No. When Amazon's founders took other people's money to build a business, they promised to act in the interests of their investors, short of breaking the law. They had, at least, to try to patent one of their business innovations before somebody else did. Amazon CEO, Jeffrey Bezos, may agree personally with Mr. Stallman. Yet, he would breach the trust of millions of shareholders if he gave away company resources for reasons other than to improve its business.
If Amazon has done nothing unethical, there is no justification for a boycott, a protest form usually reserved for high moral causes, not disagreements over patent scope.
Are Internet-related business practice patents by their nature too broad? Only the USPTO grants them, and really only since 1994. Patent offices in Canada, Europe and Japan do not - yet. Mistakes have ocurred when new industries have started to patent their technologies. Fortunately, we have courts to deliberate these questions, though over time. The US Court of Appeals upheld a patent process in July 1998, but it will be a long time before we can ask, "Is that your final answer?"
Settling patent questions with lawsuits may seem inefficient, but it works. If only a few potential infringements exist, Amazon will pursue them in court. If thousands of infringements possibly exist, the cost of litigation becomes prohibitive. The fact of so many infringers reflects upon the appropriateness and practicality of the original patent.
Is Mr. Stallman correct that software development would proceed faster without patents? Probably not. Essentially, he's arguing that software be treated the same as, for example, physics. It should exist in a public science environment in which discoveries are immediately published and information shared freely. Private science, even with proprietary knowledge, has a strong case to be as innovative, if not more, than public science. Money motivates. Market demand as much as a desire to make "cool stuff" has fueled the improvement of software. Microsoft's Bill Gates deserves no less technical respect than Linus Torvalds, creator of Linux.
Beyond which is the stronger incentive, money or peer cheers, lies the more relevant question of "Who funds the fun?" Taxpayers, for the most part, fund theoretical physics because no one else will. If business will fund applied software development, then the taxpayers shouldn't have to. Yes, it might be fun to write code for code's sake, but programmers have no stronger case than architects or engineers. Patent protection helps to ensure business will invest in software research.
The real challenge with business patents on the Internet is the same as with all things in binary code. If anyone can copy anything cheaply and easily, enforcing a patent is like herding cats, lots of cats. Digital patent enforcement will require a combination of better technology and deeper understanding of the benefits of robust intellectual property protection. Hackers can and should lead the way in both. Mr. Stallman's Amazon boycott is a click in the wrong direction. The way forward lies between no visits and a million bogus visits.
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