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Next time I get a traffic ticket, here’s what I’ll say in court:

“Your honor, the court has found me guilty. I disagree. Also, I disagree in principle with the existence of speed limits on our nations’ highways. Several theorists claim that highway traffic should be self-regulating — we should allow the overall flow of traffic to determine the speed at which each car is driven.”

“In the case U.S. Department of Justice vs Microsoft, the courts established the precedent that when the defendant disagrees with both the law and the finding of the court, the prosecution and guilty party must negotiate as equals to define a settlement agreeable to both parties. I request the court to so instruct the prosecution and myself in this case.”

Think it will work?

Me neither.

Regardless of whether you think antitrust laws are a mistake, obsolete, or inapplicable to the software industry, and regardless of whether you personally think Microsoft was actually guilty or not, the outcome of DoJ vs Microsoft was unambiguously disgraceful. With the departure of Joel Klein as lead prosecutor, and Penfield Jackson, the Lance Ito of antitrust, as judge, the fix was in. Microsoft said, “Play dead!” and our government’s executive branch — controlled, ironically enough, by the law ‘n order party — obeyed. From this point forward, Microsoft is freed from any constraints worth talking about when it comes to its use of non-market forces to buttress its market position.

As just one example, take a look at Microsoft’s investment in Corel. Almost immediately, Corel discontinued WordPerfect Office for Linux. Since Apple, in its ongoing quest for marketplace irrelevance, persistently snubs corporate IT, Linux is the only significant threat to Windows on the desktop. Which means that just as CIOs, faced with increasingly onerous licensing terms from Microsoft, are starting to search for a credible way to at least threaten to take their business elsewhere, Corel is running away from the opportunity to instead try to sell WordPerfect head-to-head against Microsoft in the Windows environment — a battle it has already lost.

Pardon me for being suspicious.

For several years I’ve predicted an impending implosion for Microsoft. I still see serious problems for it: It’s hemmed in on the server front and has such limited potential for growth on the desktop that’s it’s turned to the only alternative it could think of: predatory licensing.

Its problems, though, have receded now that our government has a “for rent” sign in front of it that lets Microsoft obey — and require its customers and competitors to obey — only those laws it finds convenient.

The U.S. system for issuing software patents is completely broken, and easily fixed.

The fix first: All Congress has to do is add these words to the existing body of patent legislation: Notwithstanding the above, no patents shall be issued for any software inventions and existing software patents shall be summarily revoked.

Disagree? Hold that thought.

Search for commentary on what’s broken about the software patent system and how to fix it and you’ll find no shortage (the best: Joel Spolsky’s “Victory Lap for Ask Patents,” Joel on Software 7/22/2013).

The widespread consensus is that the software patent system is broken.

Some numbers: The U.S. Patent and Trademark Office (PTO) receives about 40,000 new applications a year for software patents, swamping the ability of patent inspectors to separate the few grains of wheat from the abundant chaff. Because seriously, based on your knowledge, experience, and judgment, do you think there are 40,000 non-obvious ideas each year about something new and interesting that software can do? Me neither.

Take a SWAG for the time each patent application requires. Call it maybe 100 hours of total effort on the part of the software engineers responsible for these “inventions,” the attorneys responsible for shepherding them through the process, and the patent examiners who have to process them?

This is a very conservative estimate, and it means the filing process alone drains four million hours of work each year out of the economy on the part of people who have some smarts and talent to offer.

Add the cost of litigation. The courts process more than 4,000 infringement cases each year, which on average cost about $2 million to defend, and about half of which are for software patents. That’s $4 billion a year in direct costs spent defending against software patent infringement cases, not including the large but impossible-to-estimate opportunity cost of time and effort not available for innovation.

Is this crippling? No, if you think it’s mostly spent by the likes of IBM, Oracle, Apple, and Microsoft. Also no in the context of the amounts spent on research and development: $4 billion a year is about 1 percent of U.S. R&D spending.

But in the context of where software innovation comes from, $4 billion is a lot of money, because a lot of software innovation comes from small players that can’t afford to defend themselves against patent trolls, and instead choose the cheaper alternative of buying them off.

But never mind all that. To understand why Congress should abolish all software patents, we all need to recognize a major and widespread misunderstanding about the purpose of the whole patent system.

Blame the legal community. They’ve taught us to use phrases like “Intellectual Property” to describe what patents and copyrights are supposed to protect.

As Orwell pointed out, control vocabulary and you control thought. Patents and copyrights actually have nothing at all to do with property rights. Don’t believe me? Here are the exact words as they appear in Section 8 of the United States Constitution: The Congress shall have power … to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries …

See the word “property”? Me neither. The purpose of having patents at all is to promote the progress of science (and, presumably, technology), not to protect property rights.

Look, more software innovation comes from the open source community these days than from anywhere else. The cloud relies heavily on open-source technologies. Nearly every new programming language that’s appeared in the last decade is open source. Most blogging is done using open-source toolkits.

And in open-source-land the only intellectual property protection software receives is protection from intellectual property protection.

It’s abundantly clear that the main impact patent protection has on software innovation is to stifle it.

The inference is inescapable. Software patents subvert the clear words of the Constitution — they are, in a word, unconstitutional.

Which in a better world would mean Congress wouldn’t even need to act, because the Supremes could take care of the whole problem in a single, easy-to-explain precedent.

Don’t hold your breath. Not because it’s unlikely, but because I’ve applied for a patent on breath-holding as a method for accelerating results.

You could defend yourself against the infringement suit I’ll otherwise file against you, but really, wouldn’t it be easier to just send me a check to make me go away?

* * *

Yes, I know. Unless you’re a member of Congress there’s nothing in here this week that’s of any practical value to you. Sorry. Next week for sure.

In the absence of a new idea, a new name for an old one will have to do.

Which is about the only justification I can imagine for ITaaS — IT as a service.

No, ITaaS isn’t a new technology that serves up everything a traditional IT department does, only over the Internet and into your browser. It’s the twentieth-century model of IT service delivery, where the IT department envisions itself as a supplier to the rest of the business, selling various forms of information technology to its internal customers, who pay for it through a system of chargeback.

As regular readers have surely figured out by now, this isn’t a model I usually endorse — in most circumstances, integrating IT into the business leads to superior results.

But instead of piling on more criticism (or even drearier, repeating the same old ones) let’s figure out how to make it work, because there are situations — centralized IT supporting more-or-less autonomous business units, for example — where ITaaS is the only practical alternative.

Where to start? The same place real businesses start: by choosing their basic business model, “business model” meaning the buttons and levers the business can push and pull to turn its actions into profitable revenue.

Somewhere in my IT Catalysts detritus I have a list of twenty or so business models, which successfully describe every business I’ve ever run across (not all of them are good models, just as not all businesses know how to sustainable make a profit). And while there are a lot of them, three are dominant:

  • Product innovation, filling known or newly discovered needs, wants and desires with ever-increasingly wonderful goods and services (services being, in this context, just another type of product — you charge for services, different from providing good service).
  • Customer intimacy, where you know your customers so well, and take care of them so well, that taking their business elsewhere is almost unimaginable.
  • Operational excellence, where you’re so efficient that you can offer your admittedly less interesting products to whoever happens to show up, at such a low price that the savings outweigh all other concerns.

By the way: while every well-run business has one business model that’s its lead story, that doesn’t mean business leaders get to ignore the others. Product innovators still have to operate efficiently, just not with relentless efficiency; likewise they shouldn’t treat their customers like dirt, even though they can’t offer them custom-tailored solutions the way a customer-intimacy company does.

And so on.

Ready for the punch line?

IT that’s integrated into the business is close kin to the customer-intimacy business model — so much so that the rest of the business doesn’t think like a customer at all and IT stops thinking like a supplier. In this model they and we become peers and partners.

ITaaS? IT’s CEO (the CIO, but we’re modeling IT as a separate and independent business) has a choice to make. IT can be a product/service innovator or it can be what, in pre-cloud days, was called an information utility — a purveyor of inexpensive commodity solutions.

It can be finer-grained than this. For example, IT infrastructure services can have a different model from application services, with the former focusing on hyper-standardization in support of operational excellence while the latter provides technology leadership to the rest of the enterprise in the guise of product innovation.

Don’t like these business models as a framework? Come up with a different one. That’s fine — these simply illustrate the more fundamental point: With ITaaS the whole nature of IT strategy and governance undergo profound changes.

With IT as an integral part of the business, its strategy is a consequence of the overall business strategy. As an independent business its strategy is derived independently … although, like any good business, it has to guide its strategy with its understanding of marketplace (or, as it’s all metaphorical, “marketplace”) trends.

This, by the say, is one place many ITaaS proponents miss the mark. They start by defining an IT services catalog. It isn’t that having an IT services catalog is a mistake. It’s that without a business strategy behind it, an IT services catalog is just a list of stuff we do.

Strategy precedes product.

Governance? With integrated IT, governance is how the business makes sure IT’s project portfolio optimally supports business priorities. With ITaaS, revenue is revenue — IT governance is mostly a matter of which business units have the budget to do what.

Which might explain the appeal of the ITaaS relationship model: It results in a lot less arguing.