Can a Hacker Outfox Microsoft?

Cypherpunk Lucky Green files a defensive patent to prevent the software giant from using Palladium to block piracy efforts. Analysts say it just might work. By Pete Rojas.

Microsoft only announced Palladium -- its initiative to build anti-copying technology into the hardware and operating system of a PC -- a few months ago. It's already causing a great deal of consternation among cypherpunks and hackers.

They're concerned that Palladium will give software companies a disproportionate amount of control over how, where and by whom their products are used.

But a comment by Peter Biddle, Microsoft's product manager for Palladium at the 11th USENIX Security Symposium this past August revealed that software companies might not be able to use Palladium to fight piracy or enforce the terms of software licenses.

Eager to allay fears about the scope of Palladium, Biddle insisted that the impetus behind Palladium was solely to secure digital entertainment content and that he knew of no way that it could be used for the enforcement of software licensing. This assurance was made while he spoke on a panel at the USENIX Symposium.

Skeptical that this was actually the case, fellow panelist Lucky Green quickly filed two patents soon after the conference. The patents described methods for using the Palladium infrastructure to assist in the enforcement of software licensing. Green has a third patent application on the way.

The twist is that Green has no intention of implementing these techniques himself -- and in an interview with Wired News, declared his intention to "aggressively enforce his patents," if granted, to prevent anyone else from doing so.

Green has not disclosed the specifics of his patents. However, even without those details, Dan Burk, a professor at the University of Minnesota School of Law, says it is perfectly legal to patent any kind of automated technique, such as Amazon's One-Click patent and Priceline's reverse auction patent. Additionally, he says, "Improvements on known technologies are patentable."

Though this may be the first instance of a cypherpunk filing a defensive patent to prevent software anti-piracy efforts, it's a relatively common tactic in the area of industrial patents. A precedent for Green's actions exists in the biotechnology field.

In 1998, biotech activist Jeremy Rifkin filed a patent application with scientist Stuart Newman for a method for using human and animal cells to create new hybrid creatures.

Rifkin and Newman hoped that their application would either be accepted (preventing anyone else from creating anything half-human and half-animal) or that a rejection would enable them to force the patent office to examine its policy of accepting patents on life forms. The application was turned down the next year.

A representative for Microsoft declined to comment on Green's actions, citing a company policy not to comment on patent applications, but said Biddle's statements do not mean that the company couldn't successfully challenge Green's patents.

According to Burk, Microsoft is not bound by those statements. "For all we know they may be feverishly working on their own patent applications," he said. "In the U.S. we give the patent to the first inventor, and there's some possibility that Microsoft, or someone else, could show that they were the first to come up with this and prove they deserve the patent."

While it will likely take at least a year or two before Green's applications can be reviewed and approved, Green feels his prospects for success are good. He thinks that a challenge by Microsoft to his patents is unlikely: It would discredit Biddle and damage the company's reputation for truthfulness at a time when a growing number of people are skeptical of its Palladium initiative.

Of course if Biddle's claims are correct, and Palladium is not intended to be used to prevent software piracy, then whether or not Green is issued his patents should make no difference to Microsoft.