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PS: sorry for answering your trolling.

The issue is not whether a patent is for "software" or not. The same algorithm can be developed either in software or in hardware.

A specific algorithm that represents a truly novel solution to a problem should be patentable, no matter how it is implemented.

However, software isn't an implementation, it's a notation in a language that ultimately can be understood by a computer (probably after some more translation by a compiler). If you allow patents on software, you allow patents on ideas. After all, why should an idea written in C be patentable in that case, and one in English or some mathematical notation not? It also renders copyright on software completely useless. What good does it do if you own the copyright on a program if it's also covered by 20 patents you don't own?

It's the same as if there would be patents on plot-elements in books... It's not because you're writing the umpteenth book about a serial killer that you're ripping off all authors that wrote about a serial killer before. If you're downright plagiarising someone, then that other person can already defend himself using the copyright protection he got for free.

The goal of patents is to promote innovation by protecting the investment of entrepreneurs. If you carry over this protection to plain ideas, you are actually discouraging other innovators. After all, innovators are bound to reuse ideas other people have had before when doing something new (using RMS' analogy one more time: just like Beethoven didn't invent music from scratch and yet was very original, there's no programmer who can reinvent informatics from scratch - no matter how good he is).

Additionally, several studies have shown that allowing software patents hampers advances in software development. The reason is that companies start investing part of their R&D budget in obtaining patents instead of innovating more. Of course, they want to recoup that. Since big software companies have more patents than small ones, they can usually force cross-licensing deals with those smaller ones or make them pay. So the end result is that:

• Big companies still get access to all advances in software development, but spend less on innovation themselves (see this study)
• Small companies can do less innovation, because they are forced to buy "patent protection" from large companies. They also have to invest money getting patents of themselves, so that they can negotiate lower licensing fees from big companies. That's all money which cannot be spend on innovating.

One of those assistants told me he's never seen such an enormous amount of public attention for a proposal in the two years that he has worked at the European parliament. He thinks there's actually a very good chance of preventing this proposal from getting approved. Really, it's easy to say "all politicians are alike" and "corporations own the politicians anyway" etc, but that's simply not true (note: I'm not a member of any political party nor politically active, except in cases like this). Yes Virginia, there still are a lot of people with a conscience in politics who want to do the best for society at large, they just need access to the right information. In cases like this, people like us can make the difference.

If a non-programmer or non-ip-lawyer reads a proposal like McCarthy's, I can perfectly imagine that it's not that difficult for that person to be convinced that she's indeed trying to protect the software development community at large. The background text of her proposal is really full of misleading and sometimes outright wrong statements to justify her goals.

For example, she cites one study which shows that software patents are beneficial to small and medium-sized companies. In the same footnote, she states that they also looked at several other studies, however, at least one of those concludes exactly the opposite. Nevertheless, the way it is put forth in her text, it seems as if all those studies show exactly the same results. There really are a lot of things like that...

This report indicates that software patents (at least in the way they're implemented in the US) are not beneficial to the innovation process at all and that they in fact hamper it.

Continuing Patent Applications and Performance of the U.S. Patent and Trademark Office shows that the patent statistics from the US PTO are deceptive, and that the actual patent allowance rate has been as high as 95 percent (in the examined period from 1993 to 1998). "Grant rates were just as high, reaching a maximum of 97 percent." This is a much higher level of patent acceptance than in Europe and Japan. The authors conclude that the US PTO currently grants a patent "for virtually every original application."

Why is the fact that its a patent on software make it evil?

Some reasons software patents are evil are:

• regular patents protect one specific thing, software patents protect one tiny piece of a large puzzel. So a single program most of the time infringes on a large number of patents, making licensing not feasible (if you have to pay 5% of your revenue for every patent you use, you'll probably have to pay for each copy you sell).
• they don't protect small-time developers at all (except maybe against other small-time developers). If you find out that IBM or Microsoft violates your patent and you demand some retribution for that, they'll have a look at your program and probably find that you violate 30 patents of theirs. Of course, because they are such nice guys, they will probably allow you to keep using their patented stuff if they can use your 1 patent. So the protection you get is zero, and if they're not nice guy's you'll have to pay extra. The advantage of a small software developer is the speed at which he can follow changes of the market and do things, compared to the big, slow megacorporations.
• Programming not very unlike composing a symphony: just like you can't just take a couple of "musical techniques", throw them together and get something that sounds good, you can't take just a couple of (patented) cool software techniques, throw them together and get a killer app. It's the way you make those things work/sound together, the hours of debugging/refining that makes/breaks the result.

  In the same spirit: Beethoven is considered a great composer that was very progressive for his time, i.e. he introduced a lot of "new" things in his music. Nevertheless, should there have been music patents in his time, he would have been unable to make any of his compositions, since although he was smart, he wasn't smart/good enough to reinvent the music from zero and still get something that sounds good. It's similar in software development: you may be a superprogrammer with great ideas, but no one is that good that he can reinvent software development from scratch. You're just bound to reuse ideas that others have had before (and lots of people have the same ideas at the same time, without knowing anything about eachother).

• Software patents are granted for the most stupid things, for tthe simple reason that if you take something already existing that is completely obvious, but do it in software, it is considered new (e.g. selling stuff in a store -> selling stuff via the Internet, keeping client records in a store -> keeping client records in an internet store, ...)
• there are so many software patents that pretty much every program in existence probably violates several patents. If you want to develop a program, sell it and make sure you don't violate any patent, you'll probably spend more time on lawyers to look at all available software patents than you'll ever make selling your program.

The only reason to allow patents in the US is, as the US Constitution states, "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."

Does anyone seriously think that Google would not have developed this approach if it couldn't patent it? I certainly don't. Google is constantly trying to tweak its approach, and doesn't need any patents to do so. So, the government is supporting yet another monopoly over an idea, without receiving really anything useful in return. Making the patent application public isn't useful, for example; the 20-year term is essentially eternity in the software business, so it's unreasonable to believe that supporting this monopoly will improve innovation overall. The primary innovation will be other people working around the patent, instead of working to improve on the idea.

Thus, patents for software continuing to fail to promote innovation in software. Innovation in software happened for decades without software.

Professors Bessen and Maskin, two economists at the Massachusetts Institute of Technology (MIT), have demonstrated that introducing patenting into the software economy only has economic usefulness if a monopoly is the most useful form of software production. This is concerning, because few believe that a monopoly is truly the most useful (or desirable) form of software production. Bessen and Maskin also demonstrated a statistical correlation between the spread of patentability in the United States and a decline in innovation in software. In particular, between 1987 and 1994 , software patents issuance rose 195%, yet real company funded R&Ds fell by 21% in these industries while rising by 25% in industries in general. Go read their report. Other information is available at places such as the wikipedia entry on software patents.

See also: http://www.researchoninnovation.org.

I'm the editor of Linux Journal and vice-president of the Silicon Valley Linux Users Group.

# Why should we burn all GIFs?

The Internet is a good thing because you don't need the permission of any one entity to publish. If you choose a patented format, you are throwing away the advantage of publishing on the Internet in the first place.

Many commonly used image editing programs come with a GIF license. However, GIF licenses on shrink-wrap software do not apply to GIFs that you may generate on the fly -- every site that does a dynamic map or chart in GIF format has to get a separate license.

# How do you burn something that is not tangible?

You print it out, and if you're holding your event in a place that prohibits public fires, you draw flames on it with a marker. It's not the burning that's important, it's freeing yourself from needing a license to publish.

# Greplaw still uses GIFs. What should we do instead?

Use PNG or JPEG images, depending on which gives you the best quality and image size. Almost all browsers in use today support both.

# Software patentability is entering Europe and European strong author's rights are entering the US. Why is this is a problem?

I'm not familiar with the strong author's rights issue.

Software patents are a big problem, though.

Best to start from first principles, since people argue the same issue from different points of view and never get anywhere. I'm going to be US-centric and look at our Constitution, which I think soundly expresses the point of view that patents are not a property right or a natural right.

Copyrights and patents appear in the Constitution in Article 1, Section 8, along with other miscellaneous economic powers of Congress. They're right next to "Post offices and post roads".

If patents are not a natural right or a property right, what are they? As you might guess by the post office and road connection, they're a government program to promote economic growth. Patents are intended to do two things: promote R&D investment by the private sector; and encourage the private sector to publish inventions. The Constitution makes this explicit in its stated reason for copyrights and patents: "to promote the progress of science and useful arts."

Patents reward these two economically desirable behaviors (doing research and publishing) with a temporary government-granted monopoly on a particular invention. Congress has full discretion on what kinds of content can get a patent and on how long a patent can last. (If patents were a "right" the Constitution would require them -- as it is, the Constitution only allows them.)

So, how should Congress decide which kinds of content get a patent and which don't? You have to strike a balance between, on one hand, the economic benefit of any R&D motivated by the prospect of a patent that would not have happened otherwise, and on the other hand, the transaction costs that are an inevitable result of the patent's existence.

You have to draw the line of what gets a patent and what doesn't somewhere. If you allow the patenting of rhyming words, sports plays, or musical notes, day-to-day life becomes an impossible mess of patent cross-licensing. And, as for these areas, there is no economic evidence that software patents help the economy or even encourage R&D. They may do the opposite -- see the Bessen and Maskin paper (PDF-format).

Software is a good thing because in software, a small investment can create and manage great complexity. When you impose the same transaction costs on software as on hardware, much useful software that could otherwise have been created does not exist. We are seeing this today in the field of video compression. The MPEG patent licensing mess is excluding everyone except for large, well-funded corporations from creating innovative new video-related software.

There may be increased R&D investment in a few areas, such as video compression, due to the prospect of a lucrative patent, but this economic gain is swamped by the loss of productive software later.

As a software patent opponent, I argue simply that patentability creep should be rolled back. The patent office should again exclude algorithms and business methods, as it already excludes ordinary mathematical theorems and their proofs. Forming a "GPL patent pool" might help to cut some of the transaction costs where GPL-covered software is concerned but cannot hope to ameliorate patents' harm to developers who use other licenses.

# Why should a lawyer be interested in Linux?

Why should a lawyer be interested in Cat 5 cable, or ATX power supplies, or USB keyboards? Linux is a generic, commodity item that does what you want it to do, as part of a larger system that you control.

# How will free software change society?

Free software won't so much change society as it will bring the computer business more in line with the rest of the economy. If you went shopping for any non-computer product, and got offered an End User License Agreement like those offered in the computer business, you'd laugh and walk out. Free software gives the customer the same rights of inspection and control that he or she has when buying non-computer products such as furniture (you can cut a hole for your cables in your desk) or cars (you can change your own oil.)

If you want to read a novel where software-like licensing is applied to a regular product with ludicrous results, read "Secrets of the Wholly Grill: A Novel about Cravings, Barbecue, and Software" by Lawrence G Townsend.

# Many countries consider public procurement policies where free software should be encouraged or even mandated. What is your take on a "Peru law"?

Governments have a responsibility to their citizens not to enter into unfair contracts. Most or all proprietary software licenses are unfair contracts, and subject the customer to lock-in and limit the customer's ability to fix problems.

Microsoft's lobbying against fair software purchase laws has been weak. They don't even put an End User License Agreement on their web site. If even the people who wrote it are ashamed of it, why should anyone else be willing to accept it?

# After September 11, 2001 you wrote an open letter to Michael Eisner, head of Disney, urging him not to go to Washington, D.C. to lobby for the SSSCA. Why did you do that?

I am on a mailing list based on a Linux server across the street from the World Trade Center. On September 11th, the traffic was about who's where, is everyone all right, which hospitals are open for blood donations, is a particular subway station open, what's going on. Stuff you can't get from TV. We can't let the media corporations seize control of hardware, lock out free software, and turn the net into a one-way medium like TV. Unless printing and postage get real cheap real fast, free speech in the USA needs the net.

# If major companies like IBM and Sun discontinue their support of free software, what will the effects be on the current movement?

Remember the question, "If the Linux startups fail, what will happen to free software?" There's enough customer pull that if customers can't get free software products and services from IBM and Sun, they'll get it someplace else.

# Declan McCullagh of News.com has stated: 'Trust me, a few--even a few thousand--peeved e-mail messages won't change vote totals that lopsided', hence geeks should focus on code, not on government. Do you agree?

Email spam was a "geek" issue until recently, and now, as it affects more and more people, the organizations that begain calling politicians' attention to it are involved in the mainstream political process. If you learn and understand the political process now, and begin making contacts, you will better be able to use the support you get as the anti-Net crackdown affects more and more people.

Declan is half-right in that focusing on code is good too. By all means, develop something that's questionable DMCA-wise but that everybody wants to use. You will motivate more people to be interested in DMCA reform.

# Finally - what is Pigdog and why?

Pigdog.org is the leading Internet news and content site. I am not an employee, just a satisfied reader.

Don Marti was interviewed by Mikael Pawlo.

• They do not promote innovation, but merely fast patenting. The nature of CS is such that many ideas are independantly developed, and would be available without patents
• Software progresses faster without them. Here[PDF] is a (very) detailed analysis of the topic.
• Patents Don't encourage disclosure -- it's not very disclosed if no-one who might implement it will read it for fear of a lawsuit! I think M$ has this as a policy, but I can't find proof.
• Limited times are a joke -- many products are obsolete in 6 monthes. Others take 6 monthes to get going.

There is nothing colossally more wrong with being able to patent software than there is with patenting hardware.

There's a huge difference between software innovation and hardware innovation. Software innovation is sequential and complementary. Software development is not a zero sum game. Developers have always used the work of others to build, improve and enhance functionality. In the open source and Free Software worlds, this works through availability of source and the distribution licenses. In the commercial worlds, it works through user groups, conferences and special interest Web sites (like this one) where people can share ideas and code.

If I make a living by it why should I spend time developing software if I can not protect my self from people ripping me off???

Be my guest. Discover a new algorithm without any access to the work of others (I'd be impressed with that straight away) and then patent it. Oops. Is it too expensive? Darn. It seems only the big companies can afford to patent XORing a bitmap with the background to achieve transparency, something I thought up independently when I was 12. And are they protecting themselves from others ripping off this "innovation". Nope - they use patents for attack, not defence. So smaller developers can't write software even when protected by the patent system.

If a commercial software developer comes up with a clever way of coding something he has a right to patent it like any other inventor.

This is a great idea - in theory. The problem is that there are no "clever ways of coding something" which don't boil down to techniques which have been used for years: linked lists, hash tables, look up tables, mathematical operations, bitwise operations and basic algorithms used on basic data structures. It's easy to check this too - pick any software patent held by say IBM, get it translated into English or pseudocode and it will be a trivial operation. Guaranteed.

Open source organizations will have to live with the fact that if some technology is patented by a commercial organization they can not use it free of charge and without permission.

Do you mean technology or software specifically? If software, then commercial organisations should not be using free or open source software at all. Come to think of it, they shouldn't be using the Internet either.

Pay up or bugger off that is the rule of the game. What Open source organizations can do is either come up with alternatives and/or they can stop whining about patents and try to beat Commercial organizations at their own game by patenting software them selves.

Software innovation doesn't happen when development is hampered by a mass of patents. In the non-software worlds, the inventor needs to recoup his costs and thus I can see the need for a limited time of protection. But in software, all that happens is those that can afford to hold patents use them as a weapon against those that can't. And very few true innovations happen in large patent-holding companies. It's the garage operations, the one or two guys in their back rooms who come up with new stuff all the time.
And why should non-US programmers pay license fees to someone like IBM in the US? What gives them the right to tell me whether I can or can't write software in a country 10 000 miles away?

I'm sorry, but this is utter nonsense, especially when talking about software patents.

XML started being a hot subject, say, 4 years ago? And today there are thousands of lines of non-patent-encumbered code out there for people to build on -- the shared body of knowledge grows every year, not every 17 years after patents expire.

The consequences on the growth of the web will be disastrous if we don't take sensible steps like allowing patented technology into web standards

I'm assuming that's not just a troll, but what possible web related precedent can you give for thinking that? In particular, are you claiming that various innovations won't happen without patent protection, or that patented innovations will happen and that web standards will be the poorer without them?

Please check out this study for some interesting reading. I invite you to find contrasting views that aren't filled with corporate rhetoric.

Check out James Bessen's paper "Sequential Innovation, Patents and Imitation" who makes an economic arguement about why patents are harmful in innovative industries.