Conversation in the studio this week has orbited two distinct kinds of unbecoming intellectual-property trollery, one of which is mostly just risible, but the other of which poses significant challenges to our ability to offer users all the functionality we’d like to.
The first, like I say, is merely silly. More than a few of you pointed us at this rather lazy piece of reportage — stenography, actually — on the part of the BBC. Put aside for a moment the troubling degree to which a well-respected newsgathering organization here accepts several foolish assertions uncritically, and by passing them on unchallenged lends them an entirely undeserved imprimatur. What’s worse is that the article makes it seem as if this notion of an “urban OS” is an entirely original idea on the part of Living PlanIT.
For the casual reader (and aren’t most readers casual?), this impression is only enforced by a visit to Living PlanIT’s own site, where one can plainly see that they’ve slapped a “™” on the term “urban operating system (UOS).”
By our lights, this goes way beyond whether or not the BBC has, in one instance, furnished Living PlanIT with a useful idiot. It speaks directly to the question of whether anyone can claim title to an idea as generic and as widely discussed in our field as an urban operating system. Both this Wired piece from 2007 and this 2008 Benjamin Bratton joint use the term generically, in precisely the context Living PlanIT seems to be claiming as their own, while Barcelona-based Urbiotica describes their offering as “the city operating system” — untrademarked. And of course friends like Ben Cerveny have been using substantially similar, if not identical, language for most of the last decade.
As far as we’re concerned, then, this body of ideation is everyone’s property, and should remain so in perpetuity. We challenge Living PlanIT’s claim to private ownership, either of the urban OS idea or of the particular language used to characterize it, and encourage the widest possible use and dissemination of both.
We can charitably chalk up Living PlanIT’s error to the same kind of bad taste that leads one to simultaneously camel-case one’s name, hinge it on a pun, and refer to “IT.” Far more troubling to us is the case of ArrivalStar S.A.
It’s hard to understand this latter organization as anything but a classic IP troll: neither they nor their parent concern — Melvino Technologies, doubtlessly headquartered in one of those Virgin Islands “offices” that’s nothing but a blind lobby with a thousand brass plaques on the wall — actually makes anything.
Anything, that is, but lawsuits. (It’s telling that when you enter “ArrivalStar” into a search field, Google’s very first suggestion is “ArrivalStar patents.”) This is an organization that’s built a profitable enterprise around their assertion that they own the idea of predicting the arrival time of vehicles in motion.
While this isn’t quite as egregious as trying to patent distance = rate x time, it’s not that far off. However nonsensical we may find any such claim, though, we laugh at our own peril: ArrivalStar litigates ferociously, not merely going after commercial enterprises like AT&T, Fedex and UPS, but public entities like Boston’s MBTA as well. What I personally find most galling is that, again, they’re not defending any legitimate product or service of their own. All they’re engaged in is the most craven kind of rent-seeking, with the very real consequence that innovation is suppressed and citizens are prevented from having access to tools and services that might materially improve the quality of everyday life.
If you know anything about litigation, you understand that such cases can go on for awhile. Successfully defending them requires access to the kind of legal talent that costs serious money, and even if you do in the end prevail (and you’ve been fortunate enough to engage this talent on a contingent-fee basis), you’re ultimately taking a hit on your time and energy and focus that’s beyond the ability of most small businesses to sustain.
ArrivalStar’s business model relies on this — on this, and the predilection of deeper-pocketed victims to settle quickly for some nominal sum, rather than pursue what might turn out to be a half-decade-long challenge on the merits. What winds up happening is that anybody with an idea even remotely similar to the one nominally protected by the patent in question changes course, rather than running the risk of drawing the attention of a litigant known to be aggressive. This is the very definition of a chilling effect.
As it happens, we have a dog in this fight: certain features of our Transitflow application rely on depicting how many minutes you have before a bus, train or tram reaches a specified station or stop. On a close reading, we think we ought to be fine in offering North American users these features — but based on their history of scattergun litigation I’d say ArrivalStar isn’t in the close-reading business. We’re in a position, therefore, where we either release the thing we’ve spent the past few months building, and run the risk of having to counter a frivolous but energy- and resource-draining lawsuit…or we spend additional time, effort and money trying to devise ways of representing the real-time location of transit rolling stock that don’t come within a million miles of anything that might be construed as a “prediction.”
It’s intolerable to us that the people behind ArrivalStar have thus far been able to get away with such a low, socially destructive gambit. We’d welcome the formation of, and would lend significant support to, a group dedicated to defending the independent software-development community against this kind of behavior. Beyond that, it’s clear to us that whatever value their proponents claim software patents generate for a society, they’re fundamentally inimical to the free exchange of ideas and the kind of intellectual vitality that society’s ability to innovate over the longer term is necessarily predicated upon. 
