Paying patent trolls off makes you complicit in the next round of extortion

Joel Spolsky's editorial on patent trolls is fabulous. As he points out, the developers who pay relatively small sums to make patent trolls just go away are part of the problem, and complicit in the next round of extortion. Paying mobsters keeps them viable, and able to attack new victims:

In the face of organized crime, civilized people don’t pay up. When you pay up, you’re funding the criminals, which makes you complicit in their next attacks. I know, you’re just trying to write a little app for the iPhone with in-app purchases, and you didn’t ask for this fight to be yours, but if you pay the trolls, giving them money and comfort to go after the next round of indie developers, you’re not just being “pragmatic,” you have actually gone over to the dark side. Sorry. Life is a bit hard sometimes, and sometimes you have to step up and fight fights that you never signed up for.

Civilized people don’t pay up. They band together, and fight, and eliminate the problem. The EFF is launching a major initiative to reform the patent system. At Stack Exchange, we’re trying to help with Ask Patents, which will hopefully block a few bad patents before they get issued.

The Application Developers Alliance (of which I am currently serving as the chairman of the board) is also getting involved with a series of Developer Patent Summits, a nationwide tour of 15 cities, which will kick off a long term program to band together to fight patent trolls. Come to the summit in your city—I’ll be at the San Francisco event on April 9th—and find out what you can do to help.

The Patent Protection Racket (via Copyfight)


    1. Crucial detail: “But we have the resources to defend ourselves” thanks for saying that right up top. When the pull quote in the post started talking about a little independent app developer, I started thinking: “so each individual little shopkeeper in the Mafia metaphor is supposed to stand his ground and get kneecapped to send a message to the mobsters?” I think we know whose “communication strategy” works out to win in that case. I was glad when the second and third paragraphs talked about established organizations with collective power, knowledge and access to proper legal channels taking on this fight, and only recommending that the individual creators support it.  It would be pretty callous to say that one-person shops who are just trying to put something out in the world should p*ss into the wind…

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      2. If all of them do, there’s no incentive for them to kneecap anyone.

        Of course, you’re also supposed to press charges against them. I suppose the closest thing that can be done here would be to publish all correspondence so that the mobsters can be identified and doxed.

  1. If Spolsky is correct and paying off a patent troll causes them to go extort more money from my competitors, then paying them may be strategically sound.

    1. Perhaps, but what you’ve described is only a rational strategy. You are indeed better off if your competitors are subject to the same “patent troll tax” you just had to pay. But you’re neglecting the fact that the industry as a whole would be better off if that absurd cost didn’t exist in the first place.

      If you can convince the group as a whole to band together for their common interest, you’ll all be better off. Those familiar with game theory will recognize this scenario as being analogous to the prisoner’s dilemma — except that the prohibition against communication is not present. When you can encourage cooperation to enact a superrational strategy, everyone is better off. And that’s what Joel is advocating.

  2. This article is classist. The use of the phrase ‘Civilized people’ characterizes anyone who cannot afford (financially, personally, emotionally, etc) to deal with a potential lawsuit as an uncivilized person.

    Not everyone knows what a patent troll is, many people think that these threats can actually be carried out, putting themselves and their financial futures on the line when they make the decision. Protecting oneself is not a selfish thing to do.

      1.  To follow the mafia metaphor presented above (and my own comment above) each individual shopkeeper would be selfish unless they let themselves get kneecapped to “send a message” to the mob?

        I think we can find a distinction between selfish, and self-preservation. They are certainly not the same thing. An existential threat to someone who feels isolated and victimized is not being “selfish” in doing what they can to carry on.

        That’s why the collective part of this conversation is so important, to make sure that they DO know that the “mafia” has no teeth, and that if they call Elliot Ness, he has the resources and will to truly protect them. This hasn’t been so clear in the patent troll wars.

        1. Exactly.  I can’t believe the author dared used the mafia metaphor to SUPPORT his claim.  Methinks he has no real idea what any mafia is about.

      2. Yes, because the patent trolls will stop trying once they’ve stomped you and bled you dry along with any others like you.  

        There is a difference between being a defender and a martyr.  If you charge at the guns ill suited for the fight, you are nothing more than cannon fodder.  You are helping no one.

    1. That’s certainly a legitimate criticism. Perhaps the advocacy should have been phrased from a different perspective. Defeating baseless litigation may have costs that exceed the benefit to the defendant — but they are not the only beneficiary. What might be more appropriate would be to encourage companies to extend legal counsel to those that otherwise would not have the resources to defend themselves.

      The difficult part is to ensure that the burden of defending the group from these lawsuits is spread equitably among those receiving legal protection. But that’s the nature of any system with pooled resources. The Tragedy of the Commons is a difficult problem to solve even in the best of circumstances. When the participants are so often competitors in the same market, it’s that much harder.

      1. There’s a huge difference between copyright trolls and patent trolls.  There is very little facially “baseless” litigation by patent trolls: the cost of bringing the lawsuits is simply too expensive.  Yes, the patents might be ridiculous – but once they issue from the PTO there is a presumption that the patent is valid.  Proving infringement or noninfringement requires a huge investment in time and money by both sides.  So even the worst troll cases generally have some chance of winning if they go to trial — unlike truly “baseless” copyright troll cases.  

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