In stark contrast to a few people in Congress who shall remain nameless (translation: ALL OF THEM) who don’t typically, you know, read the bills they sign, I actually sat down this weekend and read all four pages of the SHIELD act. All.four.pages. Man, it took me almost 20 minutes!! Twenty minutes, I might add, that could have been spent watching The Pioneer Woman make brisket because everyone knows that there is nothing on earth quite like coming home to the smell of a roast in the oven. But no, I sacrificed that time learning to better myself in the kitchen so that I could read the SHIELD act. You’re welcome.
Without further ado, here are the most obvious three flaws:
1. It came from the government. Beyond building decent roads and providing for the common defense (un-maned drones aimed at law-abiding citizens notwithstanding), is there really anything the government does well? Mind you, I’m not drinking the haterade but let’s be honest here. The realest solutions to the biggest problems in any industry tend to come from the industry itself. Lawyers on capital hill know what special interests tell them. Patents and the patent arena can be a complicated business, which as I’ve said before is why you don’t want anything going to a jury trial. It’s not that people can’t understand, it’s that they fall asleep midway through the explanation. Like Penny does when Sheldon talks. So although most capital hill-ers are very smart lawyers, that doesn’t mean they’re smart about this. I don’t think they are, and I think the government is the last place you want to go for this sort of thing, unless you change patent law to “use it or lose it”. That would be helpful and something real and tangible that the government can do to help remedy the situation that the trolls have put us in. Which is probably why they’ll never do it, but I digress.
2. It doesn’t make the immoral behavior illegal. I can’t find the post where I said it, but someone talked about “leaving the morality of the issue aside”, something I find hard to do. What the trolls are doing is grossly aberrant to the spirit of patent law. Trolls are exploitative and opportunistic. While those are bad character traits it is not, in and of itself, illegal to be those things. This law doesn’t fix that. Which leads me to my last point, which is what the law *does* do…
3. This law fixes the problem after it has already occurred. Holy Too Little Too Late, Batman!! Once litigation starts the defendant has, for all intents and purposes, already lost. We’ve discussed that here on many occasions…once one of these cases goes to court the assert-ee is already a day late and a dollar (or three trillion) short. What? Too soon for sequester jokes? This law causes pain for the trolls only if they lose. What are the stats on that? Bueller? Anyone? How is that a preventative? When you are going after a ton of people all the time and exacting licensing fee after licensing fee *without* litigation, this law has only the smallest possibility of being consequential. And even at that, it’s “slap on the wrist” money when you consider that the trolls are a $29 Billion problem. Not helpful.
What we need to do is get trends on these guys at the earliest stage of the game, not wait until we’re in litigation, spend millions winning, and only then have the judge invoke the SHIELD law and slap the troll with a penalty. Because if and when that ever happens, we’ll then sit and watch the money never come rolling in because there will be appeal after appeal, the trolls will cry bankruptcy or perform countless acts of ballyhoo and tomfoolery to avoid paying. What needs to happen is the good guys need to start tracking the trolls and calling them out, being able to predict where and when they’ll strike next, promoting a common defense (hmmm, interesting reuse of phraseology there)…this is the sort of thing that will make an impact.
When I was a about 9 or 10, I listened to 30,000 Pounds of Bananas by Harry Chapin probably 50 times a week using my parent’s Samsung hi-fi stereo. It was a live recording and towards the end of the song, he turns to his brothers for input on one of three proposed endings. They deftly steered him away from a particularly poor option with one simple phrase, that I can’t help but repeat here:
“Harry? It sucks.”
About this proposed law and the potential to derail the Troll Train?
“US lawmakers? The SHIELD law sucks.”