Next Wednesday, Nov 13, UC Berkeley and the Silicon Valley Chapter of LES are hosting a one-day conference on “software and copyright IP commercialization.” If you are in the Bay Area, or need an excuse to get to the Bay Area, this should be interesting. The logistics are at the LES website, here. The first panel of the day, I expect, seems prepared to present licensing software in the context of licensing patents.
I remember the day I was out at MIT to give an all-day workshop on dealing with software IP for the OTL. I mean, MIT. Home of the GPL, and I was out there doing my best to argue that there was another model that didn’t start with Bayh-Dole or patents. Problem was, that was the day Akamai went public, and at noon everyone was at their workstations watching the MIT equity fortune accumulate. At the end of the day, Lita Nelson put her hand on my shoulder and said something to the effect, “That was a nice workshop–we will never do that here.” In that world, software is just another kind of invention, to be managed the way all inventions are managed, by patenting, and then a monopoly license. All it takes is one deal every 20 years and there’s financial success forever.
Following the opening panel for the UCB-LES conference is a session called “Beyond Licensing”–where we look at anything other than the patent-centric licensing model. One might call it “Before Licensing” or “Must you keep using the L word?” Have you ever been in a situation where your heart leapt up with joy when someone said, “You will need a license for that?” No, never happens. So the contrast between these two panels is likely to be worth the price of admission.
The day before, I will be leading a day-long “Advance” at UC Berkeley on intangible assets in a university setting. Advances are like “retreats” but going in the other direction. The morning will focus on relationships, projects, network assets, open source, identity switching, and content. Associated with this approach are works such as Harrison White’s Identity and Control, Daniel Kahneman’s Thinking, Fast and Slow, David Byrne’s How Music Works, Steven Johnson’s Where Good Ideas Come From, and Nassim Nicholas Taleb’s The Black Swan. These texts are not the usual fare for intellectual property management, but then we are not starting with intellectual property management, but with NIPIA–non-IP intangible assets, which are, in the long run, more important, and more valuable, than IP can ever be. The huge problem for the patenting-licensing institutional complex is that NIPIA is not owned. Thus, institutional ownership policies have trouble reaching to it. One may come to participate in NIPIA, and may ruin or enhance it, but NIPIA moves in ways that do not conform to IP policy ideologies.
Perhaps the single most important bit of NIPIA that a university tech manager can help to create is the “project.” A project is a kind of social discipline that stands apart from the discipline of the university generally, and provides a new social identity and resources for those involved in it–much as a patent creates new standing as well for those associated with it (inventions, owners, managers, licensees). So we will look at how projects form, how they represent a commons, and how they gain their own identity, relationships, and economy. As an example, I’m thinking of using A Redtail’s Dream, a fun work by Minna Sundberg, who was a Helsinki University of Art and Design student at the time. But the work is much more than a self-published webcomic–as a result of the commons of support that has developed around it.
The afternoon will then take up NIPIA-based approaches in dealing with the prevailing anchor of university administrative practice in the simple ideology presented by Bayh-Dole–that institutional ownership of inventions leads to innovation and money. I will work to show how Bayh-Dole actually works, how Stanford v Roche is important to innovation policy, and how patents turn out to be somewhat useful, if managed with care and attention to university public mission. So we will look at IP policies, projects (again), patent commons based on division of rights, frame agreements, and ways of integrating sponsored research, dissemination, and uptake. This bit about “uptake” is important, since innovation is an introduced change in the established order. Not all uptake is innovation, not all change is change in the established order–it could just be expansion and entrenchment of the established order–a gratification that at times the established order is willing to pay for, even!
One of Ron Freedman’s sentences in his 10 conundrum piece caught my eye:
But once scientific ideas have become accepted as true (cf. Karl Popper) it requires a revolution in thinking to overturn them.
The same might be said of ideas in university innovation management. One might cf. as well Thomas Kuhn and problems of the competition for shared vocabulary that is used in incommensurate ways. That is, any dispute over words, or explanations, or descriptions, or proposals, is not about proper use, but about the world view, the anchor components with which one thinks, or reasons, or blusters. Maybe it does require a revolution, or at least a revolt. Maybe in things like science and IP policy, that starts with words, and with whether one will stay silent or speak out, and if speaking, with what words, and for what reason. The Bayh-Dole scheme is indeed clever. And even clever things have their place. But there is much more going on, and other good ways to participate in creative work that introduces change. Patents are a bug in the grass.