Etherplex

Senator Obama,

As a Software Engineer, I am very impressed by your stance on technological issues. You position is well thought out and reasonable. I wish to highlight the importance of a couple of areas that you don’t specifically mention in your position discussion, but I am sure you are aware of. These two areas of intellectual property are both going through a radical transformation and are vital to maintaining the United States as a leader in research and intellectual property: patent law and copyright law.

I believe that the insistence of the United States on recognizing software patents is harmful to our economy and to the best interests of citizens, researchers and content creators alike. There are many arguments to be made against software patents. The late Phil Salin made an excellent argument based on free speech in 1991 in his insightful analysis “Freedom of Speech in Software”. Ben Klemens centers his argument against software patents around the existing prohibition of patents on mathematical formula in his book “Math You Can’t Use”.

Many arguments exist, but at the end of the day, even businesses that make their money writing software don’t believe software patents encourage innovation. Timothy B. Lee of Ars Technica has a brilliant analysis of Brad Smith’s (Microsoft’s General Counsel) March 2007 defense of software patents in light of statements made by Bill Gates in 1991 on the subject of patents:

“I feel certain that some large company will patent some obvious thing related to interface, object orientation, algorithm, application extension or other crucial technique … The solution to this is patent exchanges with large companies and patenting as much as we can.”

Bill Gates’ worry came to pass, as an arms race developed among the software superpowers. These patents were not amassed to attack others, but to ensure a software house’s ability to continue writing software even in the face of patents that would stifle innovation and block progress. Microsoft was ahead of the curve (along with IBM) now sporting over 6000 software patents, which is why a system that at one time seemed a threat is now reluctantly embraced, as we see in Brad Smith’s March 2007 article for CNET. As Mr. Smith asserts:

“Protection for software patents and other intellectual property is essential to maintaining the incentives that encourage and underwrite technological breakthroughs.”

As Mr. Lee points out in his criticism, this assertion is patently false: Microsoft created both DOS and the first version of Windows not only by building on previous work, but without any software patents whatsoever (Microsoft’s first software patent was granted in 1988, and Microsoft held only three software patents by 1990, long after their lucrative Windows and Office brands had been developed). Even worse, one could make a credible argument that the vast majority of true innovation in software was accomplished before software patents were in widespread use. Douglas Englebart’s work at ARC developing bitmap screens and hypertext is the basis for the web hypertext that this letter is using. Xerox PARC did stunning work in the 1970s that remains the predominant paradigm today, including Object Oriented programming, graphical user interfaces, the laser printer, ethernet (the basis for the internet), and the graphical text editor that formed the basis for word processors. Indeed, if an argument were to be made on the basis of objective evidence, it would seem that as software patents have increased in prevalence, so has innovation in software decreased.

This patent “arms race” essentially shuts out bedroom and open source programmers who are not simply hobbyists, but actually provide the foundation for innovation across the industry (Apple’s OS X is based on free software, for example). In my short discussion on software patents, I discuss this problem in detail, concluding that “in short, the patent system has been perverted to punish the generous and to benefit the mercenaries” as we see when companies like Microsoft threaten to use patent law against the developers of Free software. Perhaps the answer is not to remove software patents, but perhaps evaluate half-measures that would provide protection for those that give their work back to society as a basis for other work and free of charge.

The other issue I wanted to talk to you about is the area you discuss in the section of your position titled “Protect Intellectual Property at Home”. Copyright is going through a transformative period; the production and management of information is central to more industries today than it was 20 years ago, but we are also developing the means to move information quickly and cheaply – and more people get this ability each day through broadband connections to the internet. We need to develop sensible laws to allow these changes in industry and in information exchange to coexist.

There are industries which have centered their business model around controlling the distribution of data – a service that was quite valuable 30, 20 and even 10 years ago. The service was so important that those industries have amassed enormous amounts of money over decades, which they use to influence lawmaking, often at the expense of the citizens the laws are supposed to serve. The most well known of these laws is the DMCA, which is filled with unintended side effects that criminalize perfectly reasonable behavior. One example of a crime created by the DMCA is copying a DVD to a laptop to watch on an airplane. This is understandably confusing, given that the exact same action with music CDs is not only legal, but has fueled a multi-billion dollar industry of portable digital music players and subsequently the development of online digital music stores like iTunes and AmazonMP3.

I believe that information has value and that value should be protected. Even more so, I believe that we should not capitulate to the whims of an industry whose business model has been largely superseded when making our laws. If an industry’s business model is centered around the strict control of information in an environment where people freely exchange information, no law will enable that business model to succeed. It may turn millions of honest citizens into criminals, but that is not constructive. It is vital that we find solutions to the incongruence between the industry’s business model and technological progress that don’t criminalize reasonable behavior and trap the consumer in the middle of the fight.

The court cases and laws that will determine our future with respect to intellectual property will be occurring on your watch. In fact, some have already occurred. Two well known examples are the Grokster case that the Supreme Court looked at which examined the legality of peer-to-peer software, and the DMCA (signed in 1996 while Bill Clinton was in office) that criminalized actions that would have been acceptable under previous copyright law. More are coming. The main concern here is that we tread carefully; the issue of intellectual property protections afforded by the government is rocky terrain filled with unintended consequences and special interests.

There is obviously much to write on these topics, but I will stop here and leave you with one closing thought. As I was growing up, a wise man offered me a piece of philosophy on life: “Imagine the man you would like to be 20 years from now, and each day, undertake efforts to become that man.” It is not so different for us as a nation. Rather than passing laws to fix perceived ills, we should imagine what future we want for ourselves 10, 20 or even 50 years from now. When we make laws, we should consider them in light of what kind of country we would like the United States to be. I think if we follow this ideal when thinking about intellectual property in the age of the internet, we will make decisions our children will be proud of.

Sincerely,

Rick Dillon
San Diego, CA