In addition to the 10,000 people [Caution: This is a 3MB file] who added their own letters and signatures to my Open Letter to Amazon, a number of people wrote separately to the Ask Tim column with suggestions or questions. There were too many to address all of them individually, but I do want to respond to the most common questions by answering a couple of representative postings:

Question: Why don't you advocate a boycott? For example, Weston wrote:

From: weston
Subject: Could you elaborate?
Date: Tue, 29 Feb 2000 17:09:09 -0600 (CST)

I'm curious about one idea, expressed in your letter to Jeff Bezos.

"I agree with [Stallman's] message although not with his methods."

It seems to me this must mean that, for some reason, you feel a boycott is inappropriate--or at least, inappropriate as a first step. Could you elaborate on that thought?

Answer: Inappropriate as a first step is a good way to put my position. If you hope to engage someone in conversation, you don't start with your biggest guns, but instead escalate gradually, as needed. That's why I wrote privately to Jeff first, and then, when I didn't get a satisfactory response, mounted a PR and public letter writing campaign. If you assume that someone won't listen to you, they probably won't. But if you assume some amount of goodwill, that will often take you further. Jeff and I are now talking, and I hope to shift his position. If that doesn't work sufficiently, a boycott is still possible.

There's a great passage from the Tao Te Ching (in my favorite translation, The Way of Life According to Lao Tzu, by Witter Bynner) on this subject:

I find good people good, And I find bad people good, If I am good enough, Enough of a father, enough of a son.

If we assume the worst of people, we'll usually find it. Similarly, if we assume the best, we can help to bring it out in them. And of course, you calculate how likely it is that someone will respond to a certain level of pressure.

Question: Why don't you put your money where your mouth is and pull your books from Amazon's site?

As an example of this kind of question, dave clendenan wrote:

Date: Wed, 1 Mar 2000 07:32:01 -0800 (PST)
Subject: amazon's rediculous patent
From: dave clendenan clendenan@home.com

I applaud your posting of the open letter to amazon, but one thing seems missing from your description of the issue: the public notice that O'Rielly books won't be sold to amazon until this patent is no longer enforced.

Removing your library of fine manuals (and the excellent User Friendly books) from their 'shelves' would not only make a very strong statement, but would also cost them a large number of sales among users who haven't even heard about the boycott yet.

Dave Clendenan

Answer: This would be tough, if not impossible for us to do, even if we wanted to, since the publishing industry has a well-developed multi-tier distribution system. If we didn't sell books to Amazon, they could get them from Ingram, Baker & Taylor, or many other wholesalers. Also, see answer to question #1.

Question: Why isn't your open letter (or a follow up letter) aimed at the Patent Office?

For example, John Michael Keller wrote:

Date: Tue, 29 Feb 2000 13:10:43 -0800 (PST)
Subject: US Patent and Trademark Office
From: John Michael Keller jmkeller@home.com

Hello

Thank you for hosting your recent letter to Jeff Bezos from Amazon.com and allowing the public to participate.

Please consider hosting another letter to the patent office asking them to reform their processes when awarding software patents.

Also.. fyi.. I don't know if you remember when the TTL Cookbook (Sam's I think) was first published... The author was Don Lancaster.

He has an interesting business doing self publishing, and has some interesting articles on patents.

His web site is web site is located at:

www.tinaja.com

Again, Thank you for hosting the letter to Amazon.

Best regards, John Michael Keller

Answer: This is indeed a good suggestion, and we're thinking about the best way to approach the PTO. I've been talking behind the scenes with a set of internet luminaries about making a pilgrimage to Washington, perhaps with my 10,000 letters to Amazon in hand.

There are a couple of issues here:

1. Most of the luminaries in question are not as free to follow their consciences as I am. They have shareholders or bosses or legal departments to answer to, and the discussions of whether or not they can participate seem to take longer than you think they should.

2. The PTO isn't directly answerable to the public, but presumably to our representatives in Congress. Steven Levy of Newsweek interviewed Jeff Bezos and me together on Thursday, 2 March, and said he'd talked to the PTO before the interview. They are convinced that they are doing a fine job according to their mandate and the laws that control it. Frankly, if they feel that way, I'm not sure I have the kind of ammunition that would be required to change their mind.

   My appeal to Amazon was not a legal one. I don't understand the ins and outs of patent law, particularly the fine-grained details of what constitutes prior art as viewed by the PTO and by judges. My appeal to Amazon was based on the common sense of the programming community, and the PR cost of doing something that violates the sense of what is right, regardless of whether the law is on your side or not. As Dan Gillmor, crusading columnist for the San Jose Mercury News, said in a conversation we had about the issue, "It may be legal, but IT ISN'T RIGHT!" Government offices are slow to respond to arguments about what is right; they want to hear what is legal, and if the latter doesn't match the former, they want Congress to change the law.

   That being said, the more I learn about the patent system, one real issue does seems to be that the computer industry doesn't have a really good system for recording just what "prior art" is. As O'Reilly author Bruce Epstein, who recently filed for a patent of his own, said in a recent posting to the Studio B mailing list:

   BTW, I paid a lot of money to have a patent firm do a search of the literature for me (in addition to the database of patents itself). We came up with REMARKABLY little (i.e. nothing) in the literature that overlapped the subject of my planned application. If anything, this made me nervous rather than gleeful. If someone can not find any prior art after a good faith search, that doesn't mean the prior art doesn't exist. But I might be spending a large chunk of change only to have people scream "foul" when my patent (hopefully) issues 2 years from now. It is unfair to assume that anyone applying for a patent has done so in bad faith. The existence of prior art is not as obvious as one might think in many cases.

   It's clear that the kinds of searches that law firms do on prior art are not very effective. That is the fact, no doubt, because a great deal of prior art is "taken for granted" by programmers and is not written up in any way.

   At any rate, we're chewing on this problem, and we hope to start an initiative that would at least allow for prior-art commentary on recently-granted or litigated patents.

3. I'm also not interested in making a stink at the PTO specifically about the Amazon patents, since they are by far not the most egregious. I chose Amazon as a target because they are in an industry segment where I felt I had some clout, and because I thought there was reason to believe that the opinion of the programmer community mattered enough to them to count. But the real issue is far broader than Amazon's patents. If we're going to Washington, we have to get our story straight. What would we like to see happen? Should all software patents be disallowed? (Richard Stallman points out that an exemption has been made for surgical techniques, prohibiting patent enforcement, on the assumption that the public good of this knowledge being spread is more important than inventor's rights.) Should companies be required to demonstrate more thorough prior art searches, not just in the databases frequented by lawyers, but in forums frequented by programmers? Should software patents be allowed, but for a much shorter term?

   There are lots of possible answers about what would be best for the industry. I would say that the common sense of the industry is that broad "business process patents", where some technique well known in the physical world somehow becomes patentable by the first comer to implement it in software, are a bad idea. This is why the 1-Click and associates patents arouse so much ire--because they seem so obvious. But there is less agreement on whether all software patents are bad. There are certainly arguments made that some lines of research will not be pursued without patent protection, since the small inventor feels that his idea will simply be ripped-off by some company with more resources to develop it.

   Personally, without looking at a lot more pro and con cases, I'm not ready to embrace the "no software patents" at all point of view. I am ready for some action to raise the bar a LOT higher on what software people are allowed to patent.

   I think that most of us have a good "smell test" for whether a patent seems bogus or not, but encapsulating that common sense into regulations that can be followed by someone not versed in software development is not necessarily all that easy. It will take a lot of work by people who are more knowledgeable about the subject than I am.

   Thanks for all your comments, support and advice.

For example, Tim Crider wrote:

Date: Wed, 1 Mar 2000 07:15:41 -0800 (PST)
Subject: A possible solution to the Amazon Patent Situation
From: Tim Crider

Tim,

I submitted this article to slashdot, and thought it would be of interest to you and your readers as well:

"I've been keeping up with the recent Amazon situation, and am quite upset about things like this that keep slipping through the patent office. After reading the Tim O'Reilly letter, and looking at the actual patent for this amazing '1-click' technology I have a question I would like to post to the entire Open Source community. If the patent system's ignorance continues to harm us, and what we all stand for, then what is stopping us from manipulating it the same way Amazon and countless others are? What is stopping us from founding an organization that does nothing but submit patents on the most trivial of technologies, in an attempt to keep them free and out of the hands of companies like Amazon who exploit them. If the system is broken and no one is willing to take a stance to fix it, then the system will never change. I fully support the boycotts imposed on Amazon, but they are only part of the problem. The patent office that allows these kinds of patents to slip through needs to be sent a message that we are not going to accept big companies that take out patents that are equivalent to tying your shoes in the business world. Just because this is new technology, doesn't mean it's a valid excuse for these kinds of acts. I mean seriously, can I take a patent out on writing a check to pay for a transaction, if I word it right I probably could with the way things are working today. I'm not a lawyer, but I'm sure some of you out there are. What kinds of steps would we as a community need to take to keep these technologies that we use every day safe and free where they belong? I know this is not the only solution to the problem, but I believe it is one that has merit and could be accomplished if we banded together to stop others from abusing our work."

Please let me know what you think of this idea, and if you have any other possible solutions to this problem.

Tim Crider

Answer: This is a potentially interesting solution. Bruce Perens has proposed just such a free software patent pool previously.

I think that this could be a good idea for substantial new ideas created by the free software or Open Source community, or by right-thinking companies that want to support software innovation. But given the mad race to patent the most trivial of innovations, I think that it would be a mistake to enter into a patent arms race with companies like Priceline that are using their stock market billions to run a patent mill. Unlike software development itself, where the developers can put in "sweat equity" on free projects, filing a lot of patents would require a lot of money or a lot of pro-bono work by supportive lawyers. It would also be a big waste of time that ought to be spent on more productive endeavors. That's why I think it would be better to create an industry atmosphere where frivolous patents are frowned on, where prior art searches are expected to be more thorough, and where the public relations cost of actually trying to enforce frivolous or absurdly general software patents is higher than any benefit that can be achieved by pursuing them.

I think that hits the high points of the most frequently asked questions. Thanks for asking! And thanks for your continued support!

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