Break IT with Kodak

Freedom to innovate should not cost a billion dollars

Kodak's victory over Sun is wrong on so many levels, it's hard to know where to begin. Has Sun done a billion dollars worth of damage to Kodak's business by releasing Java? If it has, has Kodak got the right to that money because of a clutch of very broadly worded patents it picked up from a dying data processing company a few years ago? And if that's true, does this mean Kodak can claim damages from Microsoft, Intel and IBM – all of whom are just as liable, if Kodak's reading of its patents is correct? Or will the big guys cross-licence, agreeing not to sue each other but to turn on anyone not in the gang?

There is a huge irony here. Microsoft is at the forefront of companies who have claimed that free software is dangerous to the industry because it distorts intellectual property and IP is essential to the innovation on which everything ultimately depends.

Because IP is utterly intangible, it exists only through legal definition – and thus patent law is one of the massive pillars upon which such companies base their arguments. Yet cases like Kodak vs Sun do not say "innovate and be safe": they say "innovate and prepare to be eviscerated by lawyers".

If you have a bright idea for new software, will you dare to publish knowing there are thousands of patents waiting like man-traps out there? Will you spend years building a business, if Happi-Snappi Ltd can take you to court and claim it all as their own?

We have been here before. In the first half of the 20th century, IT was radio and television. The brightest and best of inventors worked hard at building a new world, one of great riches both metaphorical and tangible. One of the very finest was Major Edwin Armstrong, undisputed creator of FM and the superhet – two of the most important ideas in radio of the last 75 years, and still at the heart of wireless today. Yet his ideas were so powerful that they threatened the established players such as RCA.

The weapons used by RCA and its friends were patents, cross-licensing deals and government lobbying. Anyone who was anyone in the industry had to join the club or be sued into oblivion. Endless legal cases drained Armstrong's funds and spirit: where he had patent protection, he found his frequencies taken away by federal agencies -- his market removed overnight by fiat. Quarter of a decade after patenting FM, he put on his coat, hat and gloves and walked out of his apartment window, thirteen floors above the street, to his death.

Thus is innovation rewarded by those whom it threatens. Remember this, when powerful people tell you about freedom to innovate.

Remember Major Armstrong.