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Cato Institute Critique of Software Patents
binarybits writes "I've written an article for the free-market Cato Institute about how patents impede innovation in the software industry. It points out that people tend not to realize how vast the software industry is. It's not just Google and Microsoft; virtually every organization has an IT department producing potentially-infringing software. Organizations as diverse as J. Crew and the Green Bay Packers have been sued for patent infringement. It's crazy to expect all these organizations to worry about potential patent infringement. Hopefully the Supreme Court's Bilski decision will lead to new limits on software patents."
do you really expect rational arguments in favor of the public good to be of any help against entrenched interests in this matter?
Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism. There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will. Also, the first sale doctrine doesn't work. If I have a patent on a resistor, and I sell it to you and you put it in a computer, you're free to do that. You don't have that with software. I can't buy a piece of, say, Word, and use it in my own programs. For the same reason, it is very hard to figure out whether your program is off the hook. Any aspect of a program could be patented. Finally, software patents are bad (with so called "wish" claims). I have programs developed for my company. It takes me 5 seconds to come up with an idea, but it may take the programmer 5 days, or 5 weeks, to implement. If I go with a software patent to a programmer, no time is saved.
The patent system is open source avant la lettre. An inventor has to provide all his knowledge (provide the best mode), in a way that can be replicated by an ordinary person skilled in the art, and it is available on line from patent offices. The "license" it comes with is a peculiar one (territorial limited/time limited), but it expires sooner than any copyright. But it is a rough tool. Fine for many types of inventions, including medical drugs, but not for software (or business methods).
Bert
This is defense from a lawsuit by a company that makes useful products. It doesn't help against patent trolls.
Basically, if you own a patent, you're actually better off not producing any products.
"I assumed blithely that there were no elves out there in the darkness"
It is not either/OR. So, they get the copyright too. Double whammy.
Bert
This particular argument from the article is oft-repeated but weak:
"Software developers already enjoy strong copyright protections for their work, rendering patent protection largely redundant."
The exact same argument could be made for several classes of patent, such as chemical process patents, that people seem to generally consider legitimate patents in pretty much every country that has patents. If I am to believe that this is a compelling argument against software patents, then it is also a compelling argument against some other patentable areas. (Most arguments against software patents have this feature.)
On the other hand, a much more compelling argument can be made against "business method" patents (a subset of the suitcase called "software" patents) because they do not strictly define a machine. The reason algorithm patents (also part of the "software" patent suitcase) have long been acceptable just about everywhere is that they are strict abstractions of novel circuits (patentable material in virtually every country). As a general observation, most proponents of software patents are thinking of algorithm patents while most opponents of software patents are thinking of business method patents. The ambiguity of the term "software patent" muddies the context and makes intelligent discussions more difficult. It would help if everyone was more precise in their selection of terms.
Anyone who's written a relatively small amount of software has very likely infringed on someones software patent. I happen to know for a fact I'm an infringer since I wrote software that did a simple zip-code distance lookup web program and years later found out someone actually managed to patent this. The application was taken down years ago because the organization I created it for ceased to exist and had extremely shallow pockets so there's no real danger of being sued over it. I don't recall how I found out about the patent, but it certainly wasn't from looking through granted patents.
The point being it's not that difficult to infringe on someones software patent and have absolutely no idea you've done so. It wouldn't surprise me in the least if I learned I've personally written code that infringed on dozens of other software patents. I'd be extremely surprised if the libraries I use every day didn't infringe on at least one software patent.
"Imagine the outcry if the courts were to legalize patents on English prose. Suddenly, you could get a "literary patent" on novels employing a particular kind of plot twist..."
Copyright on literary concepts is strong enough to survive conversion from book to film, even when nothing remains of the original dialogue. It's strong enough to cover original sequels. Read Harry Potter and the Unauthorized Sequel. The concept of "scenes a faire" covers the concept of literary "prior art" and prevents re-copyrighting the obvious. This is generally considered workable, although it took some litigation in the 1980s before the law settled down as regarding video game "look and feel".
"Small businesses and nonprofit organizations far removed from the traditional software industry have IT departments producing potentially infringing software. The Brookings Institution's Ben Klemens has" documented that this is not a theoretical problem"
Following the "documented" link leads to a set of PowerPoint slides by someone listed as "Senior Statistician, Mood and Affective Disorders, NIMH". (Where does the Cato Institute find these people?) He's grumbling about infringement lawsuits directed against the Green Bay Packers, Caterpillar, Kraft Foods, J. Crew, Linens and Things, McDonalds, Dole Food, and Oprah Winfrey. All occupy dominant positions in their industry. (Technically, the Green Bay Packers are a "small business", with only 189 employees, but the business is valued at $911 million.) None is a nonprofit.
Copyrights are not enough. If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product. Therefore having patents is necessary.
So far, I think the only thing stopping patent trolls have been that companies that do make useful products have more resources, better legal department, and bigger war chest (yay, capitalism).
But the way lawyers have been getting their way in everything, especially in the D.C., who knows how long this will last.
Fine for many types of inventions, including medical drugs
It is NOT fine for software, but certainly it is NOT fine for medical drugs. Can anybody else enhance failing Tamiflu now when Roche holds all the key patents? Thousands might or have to die because Roche is blocking others from the drug developement, it might not be so, but certainly possible. Similar in software, I have to pay $600 for Adobe CS4 as nobody can't produce similar tools because Adobe have their 'patent portfolio' there.
"If X is the new innovative piece of code within a program, a competitor can buy the program, fire up a debugger, and look at the disassembled code for X. Once he understands how it works (reverse engineering), he can then recreate that code in a higher language, say C. Copyright does not work here. Then there are cases where the code is not that hard, and you can copy the idea by just looking at the end product."
I missed the part where that's a bad thing.
"In prison you just have to shut your eyes and take it. Here you have to shut your eyes and give it."
And nachos. Don't forget nachos.
Fuck systemd. Fuck Redhat. Fuck Soylent, too. Wait, scratch the last one.
Copyright is both a positive right (it gives the author the right to distribute and sell his product under his own conditions) and a negative right (you can forbid others to do certain stuff with your copyrighted work).
No, copyrights are purely negative rights. They permit the author to forbid others from doing certain things with their work under certain circumstances. But they provide the author no affirmative rights to do anything with his work. An author's right to create or publish a work is an exercise of his right of free speech and press, no different than if he were to use the work of another in a manner not prohibited by copyright. In the US, this right is guaranteed by the federal First Amendment and by similar provisions at the state level.
This is why, for example, an author could create obscene works, or child pornography, or libel, and have a perfectly valid copyright on them (there's no morals clause to what is eligible for copyright), but not be allowed to publish or perhaps even possess copies.
-- This and all my posts are in the public domain. I am a lawyer. I am not your lawyer, and this is not legal advice.
Patent attorney here. Yes, software patents shouldn't be there. Patents are there to stop people from sitting on their ideas. Stopping people from sitting on their ideas helps society, because it give society more knowledge. However, for software there is no need for this mechanism.
[Citation needed].
Here's a bunch of citations I once collected (note that it also includes a few opinions of political committees, but those are clearly marked).
Since State Street, there has been immeasurable innovation in the field of software. You've got nothing to back up this assertion.
I think we can indeed agree that software patents have not killed the software industry. That's however not a very strong argument if you claim that software patents are necessary or even helpful.
There is no shortage of innovation because of lack of progress. If one person doesn't think of it, another one will.
The same could be said about any field of invention, including machines and compositions of matter.
It's however doubly so applicable to software, because software innovation requires much less investment in materials, works with an idealised abstraction (rather than with finicky physical bits), and consists almost exclusively of incremental innovation. A.o., the FTC report and the report by the National Research Council cited above go into more detail.
Well, you could read the claims of the patent. That would make it very easy to figure out whether your program is off the hook.
Of "the" patent? You mean of all the granted patents, right?
And actually, the risk of whether or not you infringe on a patent (software or otherwise) is simply not manageable in practice. How do I know? Because you cannot insure yourself against such risks. AIG, Lloyds and others have tried for a short while to offer such policies, and suffered losses up to 3000%! So if even those guys specialised in risk management can't determine the risk of infringing on a patent, what makes you think Joe the Programmer can do so with any degree of accuracy?
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Four things. Money, sex , cars, nachos, and beer.
I'll come in again.
Confucius say, "Find worm in apple - bad. Find half a worm - worse."
No, he's not.
Yes, he is, at least in the EU. Reverse-engineering is forbidden by software copyright law here, except if all of the following conditions are true:
See article 6 of the EU software copyright directive.
The output of his reverse engineering will be the abstract method that can be covered by a patent, but not by copyright. For example, after looking at the disassembly for X, and performing more analysis using a debugger, he figures out the steps to perform X are:
At the very least, you are tainted when you do stuff like this. Phoenix didn't do clean room reverse-engineering for nothing when they re-implemented IBM's BIOS.
Right, but competition usually means performing to equal or exceed your competitor.
And this can be in many ways: customer service, price, time to market, branding, offered products etc.
If you simply sit by and wait, then copy (steal) something innovative created by your competitor, that's not performing at all.
Actually, that is exactly how competition works. You take what already exists, duplicate it and presumably add value in one way or another (from the list above). A certain amount of imitation is mandatory to have a competitive market.
Thanks to copyright and to the complexity of making well-working and polished software, innovators automatically have a limited lead-time advantage. Artificially extending this by many years using patents is only justifiable if otherwise the entire innovation of the industry would collapse. And there are simply no indications that this is the case, on the contrary.
It's just leeching off someone else's work to profit yourself. Soon inventors will get tired of getting taken advantage of, and only pursue inventions that take little time and money. That way, if someone copies their ideas, the loss won't be much. But society, as a general, will suffer more because many good inventions take more time and money, and those won't be created without sufficient protection.
It turns out that the above is simply not true in case of the software world. Competition (i.e., what you call copying, stealing and whatnot) is what drives innovation in the software industry, and the traditionally mild IP-regimes have been very conductive to this. See the overview of studies I posted in a previous comment.
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Since State Street, there has been immeasurable innovation in the field of software.
That is entirely meaningless. What you need to measure is (1) how much of that innovation would not have happened without patents, and (2) how much other innovation would have happened without patents.
Figure out how much software there is where once you know what it does or how it works, re-implementing it would take 100x less effort.
Figure out how much software was lost due to "chilling effects" where people are afraid to do anything, and how much was outright killed (like for example Blackboard has been trying to do to everyone else in that industry).
I'm guessing that (1) is very very small, and (2) is significantly bigger but still somewhat small when taken as a fraction of all software.
Where do individual authors get off thinking that their incremental improvements on the ideas of other inventors which they released out into the world as a working product get to keep other people from making incremental improvements on top of it and distributing their own products?
Where do authors get off thinking they are doing more than riffing off someone else's chord?
And where do they get off thinking the government needs to enforce a monopoly for them on these derivative ideas?
Your statement insinuates the reverse engineering person somehow has legal rights to the work of others just because reverse engineering the invention is hard.
No.
I am saying that they have that right by default (because knowledge fundamentally cannot be owned), and that reverse engineering being hard means that the fundamental justification for the patent system ("to promote the progress of science and the useful arts") cannot justify taking that right away in such a case.
All patents do is ensure the inventor, the person giving the benefits, is adequately compensated for his work, that's all.
No, they do not. They attempt to do so, but don't do a very good job and have a huge number of bad side effects (like blocking other inventions, turning the common case of simultaneous invention into a lottery, adding overhead to basically all research, etc).
The only ones I could see supporting software patents are some patent lawyers.
Well, then we are screwed, because tort reform of any kind certainly isn't in the interests of the current political party that happens in be in power in Washington.
Let me first get this out of the way, I don't consider patent reform as being anything like tort reform. And I certainly don't want to make it easier for someone to get away with messing up a person's life. Because of someone's recklessness I was left with a disability when I survived an injury I wish I had died from.
On second thought, I'm too angry to recall what I was going to write so there is no follow up.
Falcon
Should there be a Law?
Nobody is asking for a handout, just what is rightfully, and justly owed.
You ARE asking for a handout and what is not rightfully yours, a monopoly. Information in not owned by anyone. If you feel you'll miss out by sharing your ideas then don't share them. Once you do share them you still have them, but so do others.
Falcon
Should there be a Law?