Archive for the ‘Intellectual Property’ Category
Software Patents
It occurred to me that the patent system was created to encourage innovators to release the results of their work to the public so that the society could benefit as a whole from the work of the individual. The obvious way to achieve this is to give the innovator exclusive rights to the innovation in exchange for making the innovation’s details public.
There are many arguments one can level against software patents. You can take the tack that software is essentially math (which it is), and is therefore not patentable (consider a patent on calculus, for example). You can claim that the source code to software is free speech, and it is therefore unconstitutional to limit it through the patent system. You can claim that software is fundamentally a creative art, and is protected by copyright, rendering the patenting of a piece of software akin to the patenting of a plot device in a novel.
But there is another argument that I’ve formulated recently that does not rely on an analogy. It is simply this: when the patent system was designed, its creators never considered that it would be used against those that might have only the best interest of society in mind, rather than their own personal gain. The mere notion that the patent system, a mechanism to promote knowledge sharing in a free society, would be used as a weapon against people and entities that would freely give away their work for anyone to use is absurd. And yet, this is where we find ourselves.
This is by no means a new topic (see Seth Shulman’s book Owning the Future), but the juxtaposition of the system’s goals with the way in which it is being used by today’s companies shed new light on the issue for me. The real innovators are being punished by the system, rather than rewarded. If a garage programmer comes up with a brand new algorithm for distributing data over the network, the software will likely contain a violation of some software patent, as most software does (things like scrollbars, clickable buttons, and one-click checkout have been successfully patented in the United States). The difference is that when a big company creates such software (IBM, Sun, Microsoft, etc.) they have big enough patent portfolios to use them to enter “patent deals” with those that would sue them. That is, the bigger company A’s patent portfolio is, the more likely it is that Company B, the company that wants to sue them, will have likewise violated one of Company A’s patents. In this way, software patents form a sort of “mutually assured destruction” between software patent super powers.
Where do independent developers fit in? Well, so long as they are not that successful, all is well, and they stay below the radar of the superpowers. But if they ever become a threat (GNU, Linux, etc.), then they attract attention and are threatened from the ever present “Patent of Damocles”. Microsoft has repeatedly made threats that they wish to come after GNU/Linux for patent violations, even though Linux is given away to everyone in the society – an asset for all to use freely. In short, the patent system has been perverted to punish the generous and to benefit the mercenaries.
It is, of course, much worse than this. Projects like FFMpeg seek to make media files available to play and edit on a wide variety of computers free of charge. This is a tremendous amount of work, is actively fought by commercial vendors, and has somehow been made illegal in the United States through patent law. In fact, established standards like MPEG4 cannot be implemented by free software authors because the algorithms outlined in the specification itself are patented. Authors who would give their software away free of charge cannot pay licensing fees, and therefore must implement their software in other countries.
Many will cite the United States patent system as rewarding innovators, and credit it with making the United States an intellectual capital in the world. The truth is that we are forcing bright talented software writers who would share their work freely to work in other countries because their work is illegal in the United States.
Perhaps the way forward is to grant those who release their work free a reprieve from prosecution under antiquated “intellectual property” laws until those laws can be updated to reflect the changing landscape of innovation in the software community.
