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IBM's Supreme Court Brief Says That Patents Drive Free Software
H4x0r Jim Duggan writes "For the Supreme Court's upcoming review of the Bilski decision, IBM has submitted an amicus brief claiming that software patents 'fueled the explosive growth of open source software development' (!) (p38 of linked PDF). EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."
The following phrases are among the few common uses of the word "patent"
as an adjective:
"That is patent nonsense."
"That is a patent lie."
Where are we going and why are we in a handbasket?
IBM is on IBM's side.
General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Thanks to patents, there are numerous alternatives to the MP3 format.
Thanks to that GIF patent (now expired), there is PNG.
So yes, patents drive development by "encouraging" people to re-invent a different, maybe better, wheel.
I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.
The problem is the BLINDINGLY OBVIOUS and TRIVIAL things that are being awarded patents.
Examples:
A special comparison operator for pointers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220040230959%22.PGNR.&OS=DN/20040230959&RS=DN/20040230959
Encoding of floating point numbers as non-negative integers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220050023524%22.PGNR.&OS=DN/20050023524&RS=DN/20050023524
Policy change notification: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,269,853.PN.&OS=PN/7,269,853&RS=PN/7,269,853
There's zillions of them and I'm pretty sure that every line of code being written today violates at least one. It's the equivalent of allowing copyright of individual English words.
No sig today...
Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.
All that's really left to debate is whether this project, that project, etc all add up to something that counts as "explosive growth." And at that point, it's just not an interesting question.
Saying patents fuel software development (both free and proprietary, since both types are actually harmed by patents) may be a distortion, because it (misleadingly) implies that the patents help the overall situation, but on its face, the statement is literally true. Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.
As copyright owner of this comment, I authorize everyone to defeat any technological measure which limits access to it.
TFA says:
patent protection has promoted the free sharing of source code [...] which has fueled the explosive growth of open source software development.
Here's the quoted footnote from the Amicus brief:
See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994) (Newman, J., concurring). Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms -- which has fueled the explosive growth of open source software development.
The emphasis on "on a patentee's terms" is mine, and the phrase omitted from TFA is vital to the meaning of the sentence as a whole. I believe Adobe's release of the Portable Document Format specification is a case in point. Adobe made the specification available with the stipulation that it not be used to develop products that compete with Adobe's products. The open specification allowed the development of all kinds of open source tools (as well as closed-source tools) that make PDF much more useful to everyone, yet Adobe is protected from having its development investment and future business stolen.
"Who controls the past controls the future. Who controls the present controls the past." -- George Orwell
There could be aspects of the Vorbis codec that are patented, but no one knows as no one (for good reason) is looking. VP3 was written well before it became Theora, and unfortunately is in the bad position of being inefficient.
But let's consider what we don't have because of patents? How about wavelet compression, and the adoption of JPEG2000? Completely ground to a halt as one company holds a slew of patents over it.
Yes, patents force people to work around them. They're stuck reinventing the wheel, poorly, and remain at risk of patent suits. The problem with software patents is they're either so stupidly simple that everyone runs over them (and strive to remain ignorant of having done so, to lessen any possible damages) or are so vague that they cover huge swaths, denying entire fields and crippling compatibility.
Isn't this reasoning similar to the Broken Window Fallacy?
If MP3 didn't have patents, we wouldn't have ogg, true. Which means the talent used to REINVENT THE WHEEL in the ogg codecs would have instead been used to improve the patent-free MP3 instead (or to work on other projects).
No sig for the moment.
EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."
Essentially, their argument hinges on the preamble of Art. 1, sec 8, clause 8 - "To promote the Progress of... useful Arts," and the claim that if software patents stifle innovation, then they're unconstitutional. Problem is, we're not dealing with a fundamental right or an equal protection argument, so the Court will use a rational basis test - could Congress have had a rational basis for passing 35 USC 101 and not excluding software patents? If so, it's constitutional. And the Court always defers to Congress on stuff like that. Asking the Supreme Court to add a software exclusion into Title 35 on a constitutionality argument would be asking them to be "activist judges". And that just isn't going to work.
Want to change the patent statute? Lobby Congress. They have full authority to do anything. There's not even a Constitutional requirement that patents exist - the clause merely gives Congress the power to enact patents, if they want to. But they don't have to. They could outlaw all patents tomorrow and that would be Constitutional (caveat - may have a due process issue for the next 20 years over people who filed for patents already, but that's a separate issue).
So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?
The correct term is corporatism or fascism, which seems to be the direction of the Republican party. This is the fundamental argument against unregulated capitalism which has become prevalent in the US over the past 100 years.
Not that I believe the Democrats are any better, since they ultimately are a corporatist organization as well. The Dems just lack the organization...
Lemme fix that for ya:
If not for the LZW patent, libpng would never have been needed to be developed. Were it not for the MP3 patents, we wouldn't have needed Vorbis.
Necessity might be the mother of all invention, but in this case it was artificial necessity. The inventions were only necessary to get around the brick walls created by the patents. Tear down the unnatural brick walls, and the innovation could have focused on incrementally improving those existing techniques instead rather than essentially reinventing the wheel just to bypass them.