a glob of nerdishness

This post, subtitled “Intellectual Property for the Independent Developer”, was originally put together as a Blitz talk submission for this year’s C4 conference. I was reminded by the latest Core Intuition podcast to share it here.

Intellectuwha?

As creators, we have this sense of ownership over our work. This concept has many legal “implementations” under a framework known as Intellectual Property. Intellectual property (IP) is a blanket term for the idea that it’s not just wrong to steal Suzie’s crayons, but it’s also wrong to rip off her work as well.

Intellectual Property rights help one monetize their mind. Unlike physical property, violating someone’s IP rights doesn’t rob them of the thing itself, but it does deprive them of control over how — and for how much! — their work is used.

Disclaimer

I should make one thing clear: I am NOT a lawyer, and this is not legal advice. There’s a lot of depth and detail in this realm, these concepts are an architecture whose requirements keep shifting, and my advice here may not be in your best interest.

This post is a high-level overview of a few specific IP rights. I’m defining them based on my understanding of US law. Most other countries have similar protections, but they differ in the details.

Copyright: Control your creations

Copyright is for creative work, like programs and icons and documentation. These things are way easier to copy than they are to make, so the law says that creators have the right to decide — to control — what copies are made and under what terms.

It’s actually the owner who controls the work. Ownership can be transfered (talk with your graphic designers about it) and if you’re employed or doing contract work you’ll want to make sure it’s clear who owns the things you create.

Most of the time as an independent developer, you’ll want to share copies of your work, so long as you profit somehow. When you “license” your software or source code, you get to set the terms for that to happen the way you want. For example, if your binary ends up on one of those shady “pay $4 to download” sites you may be able to use your copyright and/or trademark rights to have it taken down.

Trademarks: Control your brand.

Trademark is for your “brand elements”: company and product names, identifying logos and slogans, even elements of industrial design (like the iPod’s shape). You are given some control over them to prevent misuse.

You automatically get trademark protection as soon as you start using a brand; you can draw attention to that with the little ™ symbol. Copyright is similar; it’s an automatic right upon publishing. But with both, if you can afford to register, you get better weapons in court (at least in the US, where IP law is biased towards larger interests).

Trademarks don’t give you complete control. People can still criticize your brand using your own trademarks, for example. Copyright has some fair use exceptions, too. Remember, there’s a lot of depth to IP law. All of this is just legal control: you still may need to pay lawyers and go to court to claim (defend, really!) your rights.

Patents: Control your HOWTO (for a while)

Speaking of paying lawyers! A patent is basically a HOWTO with benefits — you reveal and explain a new mechanism or method, in exchange for about twenty years of control over your specific invention. Patents are the nuclear weapons of the software business…they’re expensive to file and even more costly to deploy in court. It’s typically only large corporations who can afford to parade their patent portfolios, though little rogue nations do like to ride the bombs down now and then.

Trade secrets: Control your knowledge (forever…maybe)

Trade secrets are probably a better solution than patents for most indies. You can control this form of IP as long as you can keep it a secret. Most legal systems provide penalties against leaks, but once the damage is done, you have lost control.

One way to encourage secrecy is through the use of Non-Disclosure Agreements. Some *cough* companies do NDAs in a big way as a sort of trade secret bunker around their patents, but indies can make use of the same legal protections of these contracts to control things like beta releases and details about under-the-hood secret sauce.

IANANAL

In some ways, Intellectual Property is the bedrock of the software business, and pressing it to full advantage might yield good financial returns. But my unofficial, could be wrong, might be bad, advice is to take it easy. Know your rights and don’t violate others’ rights, but don’t forget what keeps you in business either. One great part of the indie ethos is the desire not to control the world, but to contribute to it.

“Create more value than you capture” is a phrase Tim O’Reilly often uses, and I think it’s an apropos motto when it comes to Intellectual Property. Here are a few ways that you can use your IP rights to contribute, rather than control. You aren’t in the indie Mac community long before you see these practices in action:

• Respect your customers
• Spread knowledge
• Share source
• Boost others’ brands

Al fin

I think it’s important that developers have an awareness of their rights and their responsibilities regarding Intellectual Property, so I hope this was a helpful overview. If you’re looking for further reading, I’ve got a growing list of bookmarks tagged with iplaw and related terms that may be of interest.

Call this the second of a two part series. The first looked at the past, and now you get a glimpse of THE FUTURE!

Tobias Vander Wilt will be one month old this weekend, and d.v. will grow up faster than we can imagine.

It’s my hope that, whatever his occupation, he’ll have the freedom to wholeheartedly serve our creator, discovering — and sharing — innovative responses to what is broken in this world. And it’s my hope that even if doing so goes against powerful interests, he’ll still do right.

Our little two man company just got back from our second trip to attend Seattle Xcoders. Once again, we had great conversations with friends and developers there. Among ourselves on the way there and back, we talked about many hopes and ideas for our company’s future. We discussed the temptation to let overlofty ideals about how software “should be” hamper the smaller goals that must first be achieved along the way. And we imagined ourselves writing great software that helps people do great things, built on top of a great platform.

Then we came back to this bad news. Apple have decided not to reward yet another developer’s hard work, this time on a very legitimate iPhone application. When the iPhone developer’s kit was announced, developers were warned that certain limitations would be enforced — Apple wouldn’t allow apps that were (for example) malicious, violated users’ privacy, “illegal” and other such things to be sold. This generated some immediate speculation about how Apple would use this power they’d reserved. After months of having to work under an NDA that would forbid developers from learning this new operating system as a community, now comes this confirmation of a once-latent fear. It’s a tough struggle to turn ideas, time, money and other limited resources into a product that will improve user’s lives. Now Apple are using their control in a way that makes the expected return on this investment even lower, especially for competitors of Apple or Apple’s partners. They’ve set up a game where they are the only ones who can’t lose, unless customers and third party developers stop playing.

Already one talented developer has announced that he will not be writing any more iPhone applications until the rules are made clear to all contestants and the referees are no longer hidden behind one-way glass. Apple claim they are still “processing” our application into this Secret Sharecropper Society. Should we email them and tell them not to bother, that we don’t want any share in this? If we believe Apple’s market is unnecessarily risky for us (it is) and if we believe Apple’s censorship will hurt our customers (it will) and if we believe this kind of human-centralized control will end up harming everyone everywhere (it may) — if we believe all that — is it hypocritical of us to still want to make iPhone software?

Worse, it is also Apple who control the equally amazing desktop platform for which we have been writing software since before January. What if this is also the future Apple intend for Mac development? Will we be legally obligated to learn and grow alone and leave others to do the same? Will we be unable to properly test our code in real world conditions? Will we have no choice but to give a cut of all our revenue to yet another bureaucracy that thinks it knows what’s best? And after all that, will we occasionally have the freedom to sell our work simply taken away? If so, we’re making a very bad investment.

What should we do? In a number of countries, the World Wide Web still has many of the freedoms and opportunities that the Wild Wild West is rumored to have once held. But just as many covered wagons never made it, and the ones that did learned to do without the modern conveniences they once enjoyed, we like the comfort of the desktop and our software is better for having the plumbing and wiring a web cabin just doesn’t provide. If we stay on Apple’s good side, we might be able to make a lot of money. And except for the ideals we’d have to disregard, it would be honest money too.

The first version of our software will not do all we think it should do for our paying customers. We don’t intend to rip anybody off, and it’s not because we disrespect our users. It’s because we are learning, at least with software development, that sometimes it is impossible to get to where we want to be without making some practical compromises along the way. We’ll always try to avoid doing things the wrong way, but sometimes we don’t yet have the ability to do them the best way either. I wonder if more of life — or at least this business struggle we’ve found ourselves a part of — I wonder if it’s okay to invest in a system we don’t fully agree with, at least until we have the opportunity to trade in for something better? Our company would be grateful for your advocacy to the one who is really in control on our behalf, and I would appreciate reading your thoughts about these “compromises” as well.

Corporations don’t value my warm fuzzy feelings. Computers go bonkers. Code is hard to write well. Cars keep breaking down; colonies of mold keep forming on things once clean; creepy crawly critters keep coming through the walls; cats keep turning kibble into feral kittens; crooks keep on, who knows when they’ll be back.

Complicated issues don’t have concrete answers, or even easy questions. I keep letting myself settle into the sidelines — the world doesn’t spin the way I think it should, so I stand with my arms folded making cynical, sarcastic and even snide commentary on just how screwed up the entire shebang is.

I’ve been fighting fire with spoonfuls of rancid bacon grease.

Even in my best moods, I still believe that human pride trumps human progress, that people who set out to change the world end up content to just control it instead, that human history teaches history teaches humans little. So if success is simply continuing forward, why bother succeeding? Because failure is unpleasant? Because real men ship? Because my addled programmer brain has no other mode but to find the underlying patterns, implement the missing features, fix the major bugs, of THE ENTIRE UNIVERSE?

I’m not pressing on because I think I can fix the problem, clean up the mess, and squelch the fire. I’m pressing on because, yeah there are messes and I keep making more, yet the world is in good hands. I’ve been blessed despite my brokenness, and from what I’ve been given I hope to give a bit of cool water. And specifically, today’s next step: maybe some of that could affix a mess of pictures to something that resembles a map; I can’t fire myself just yet.

Yesterday was my last day at my old job. It’s a decision I had been considering for a while now, and one that’s been settled in my head since the end of August. I still wonder, though, how I’ll remember this week looking back.

Over the past year, I came to realise that writing in-house software, regardless of the problem domain, was never going to stimulate my AD/HD-addled brain in a wholly satisfying way. That wasn’t reason enough to quit, though. I had a great boss, comfortable enough pay, camaraderie with some interesting co-workers, and the work still offered good challenges often enough to make it worth doing. Not all was rosy (my job description was in transition from “independent contractor working from home” to “employee commuting to an office building almost an hour away”) but life was good.

In short, the job had its upsides and downsides, like most of life. I didn’t really quit my job because the downsides outweighed the upsides, though there were plenty of days when that’s how I felt. I quit my job because of its opportunity cost. I’ve been wanting to start my own company ever since I was a twelve-year-old, craving augmented buying power but thwarted by those feckless child labor laws. I think my motivations have matured a little, but the dream never died.

As my interests changed — from computers, to music, to photography, to fleeing the torment they call “higher education”, back to computers — I collected a lot of neat software ideas. But ideas are like opinions: valuable, just not in a way that puts food on the table. (Unless you’re a patent troll…I digress.) Out of all my ideas, only a handful seemed to have much feasibility or market potential, and out of those, only one has consistently held my interest.

Since I first latched onto it in the Fall of 2004, I’ve watched the idea slowly move towards mainstream while I tried to do schoolwork and while I drove to my quasi-cubicle. I tried to fit it in as a hobby, but never got the momentum to bite off any sizeable side-project in my “spare time”. Trying to pursue two nearly-overlapping software lives was distractingly complicated. Now my mission is simple: Create the best software for organising photos geographically. Ever.

Looks like Scott Adams doesn’t think the sleek page layout features in Numbers will change much in the business world:

Obviously, the pointy-haired boss wouldn’t be using such a hip computer, but this week’s spreadsheet theme is especially fun after the iWork announcements. (See the original at dilbert.com while it’s still available.)

The iPhone contract rates have been announced. Take a mandatory 2 year contract at a minimum $59.99 a month, plus a $36 activation fee and the $499 phone. All together? An obligation to pay US$1974.76 (plus tax?) by July 2009 if I were to get the iPhone this weekend.

I’m guessing my wife won’t let me, though I don’t blame her.

Here’s another episode in my brief “whine about big corporations” streak. You can see for yourself the results of Google’s self-censorship in China. A search for tiananmen square massacre on images.google.com turns up “about 4,700″ results. The same search on images.google.cn (translated back into English, also via Google) turns up about 57 “in line with the results of inquiries”, all much happier.

You can watch it, read the various commentaries, or just save your time. Steve Job’s little flip book for this year’s Apple Developer keynote read something like this:

1. Bemusement
2. Boredom
3. Betrayal

One more “One more thing” might not get as much laughter/applause next year.

Once again, I can replace my whole printer for less than I can replace just the ink. A refurbished Epson R260 costs $59 (US) dollars even, with free shipping. Replacing all 6 regular-capacity ink cartridges rings up at $77.84, plus shipping is on me. That’s simply PSYCHOTIC!!!

Various bloggers and journalists have done the math, and printer ink can cost over $10,000 per gallon! I could choose between various generic brands costing around $25 for the whole set, but in this I’m inclined to believe the Genuine Ink FUD. I use my printer for giclée reproductions of my photographs, not pie charts and budget greeting cards, so I need to be sure what comes out is suitable for long-term framing.

I’ve already ditched my last printer without once refilling it. I was hoping to save some baby whales this time around, but the price difference isn’t helping me out. The ink doesn’t last long, and I don’t want to leave behind a trail of parched printers, but twenty dollars could buy a lot of used books, roasted cashews or guitar strings!

For $10 out of pocket, I could pay Epson to shred and melt down the hefty beast. I’d get $5 back in Epson Store tokens, and it doesn’t look like too much of a hassle beyond the timing of the exchange. But like some sort of carbon credits con, paying to turn a perfectly functional printer into hamster bedding feels like someone’s getting swindled. (Especially since Epson has already taken me to the cleaners once on the deal. Or twice, if you count the fact that this $80 ink only works on one brand of photo paper using the provided profiles…)

Here are some alternatives I’ve come up with:

• Buy some generic ink and donate everything to a non-profit, hoping they can recoup the cost
• Give the old printer to someone who could buy their own generic ink
• Add it to a stack somewhere to make something out of the parts someday

Do you have any other ideas?