But What Are Software Patents Good For?
from the still-waiting? dept
Tim Lee, over at the Technology Liberation Front is breaking down a recent report defending software patents from the Progress & Freedom Foundation -- a think tank which claims to be libertarian, but is consistently a huge supporter of granting government-granted monopolies on intellectual property. They were huge supporters of the DMCA, and keep trying to make it even worse. Tim raises an important question about software patents that should actually apply to just about any intellectual property issue, but which is rarely asked: what are software patents good for? He notes that all of the defenses for software patents actually are attempts at debunking the arguments against software patents, rather than explaining why software patents are necessary.This is a key point that some of us have tried to raise before. The purpose of government intervention and regulation should be to solve a situation where the market has somehow failed -- and the regulation is designed to solve that market failure. It's hard to see what market failure software patents are solving. The industry did incredibly well for many years without patenting software, and it was only recently that, as the federal courts clarified what was and was not patentable, that patent attorneys rushed to have companies patent their software. The market itself seemed to be providing plenty of incentives to produce software products. The richest man in the world became that rich selling software. It's hard to see how there's any kind of market failure that would need the government to support monopolies to create incentives for more people to write software. This is important whenever there's a discussion over intellectual property rights. Go back to the original purpose of intellectual property: to encourage new innovations where the market fails to provide those incentives.
There's a second point that Tim makes that is also very much worth highlighting. One of the keys to creating incentives for continuous innovation is to have a competitive market. In fact, it's pretty well accepted that believers in the free market support competitive market places. If they're not competitive, that's often a sign of market failure. Well, it seems that the folks at PFF have flipped the equation -- which is why it's difficult to see how they can claim that they're libertarian. They say that software patents are necessary to prevent "copying," but as Tim notes, in any other business "copying" is known as "competition." So, the supposedly free market supporters at PFF are basically saying they don't want a free market or competition in software -- which goes against everything they claim they stand for.
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DCMA and DRM
As for "software patents".. I personally think its a bunch of bull$hit.. Nothing more than lazy people wanting to make money off of the lousiest things. I'll agree with what he said in the link tho.. Source code can be copyrighted.. but patenting the software as its run on the computer is like trying to patent the results of a calculator.
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You're not thinking broad enough
You're not thinking broad enough: Microsoft Patents Ones, Zeroes
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hmm
I rambled offtopic. sorry.
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Money
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unworkable
The concept of software patents (patents on mathematical truths) is so absurd that the civillised world rejects it out of hand.
There is a VERY small minority of corrupt interests fighting for this.
Even if they succeed in establishing such an idea it will not be recognised by the majority of innovators and scientists, to the extent that developers will simply move to countries that do not recognise them.
Software patents are economic suicide which ever way you look at it.
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Re: unworkable
Go to hell, idiot !
Because of uneducated morons like you real scientists and inventors are not getting paid for their hard work and big corps are getting away with stealing inventions from small guys.
Have you heard about ASIC or FPGA ?
Google these words, idiot !
Software and hardware implementations are EQUIVALENT
Write it on your forehead, mudak !
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Re: Re: unworkable
You are confused, there is no such equivilence.
I suspect I was designing VLSI while you wre still sucking on your mothers nipple, so I must dismiss your patronising nonsense out of hand.
I find it hard to respond further to your abuse, and I will not engage in a battle of wits with an unarmed man. Please enrol yourself on a basic computer science or electronic engineering course at your local college and come back to me when you can present a coherent argument.
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Words fail me
The current system is helping big corps - who can afford patent arsenals and legions of lawyers to protect them - to shut out the little guys.
Understand what patents are for - to incentivise inventors. And get some help.
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Re: unworkable
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Re: Re: unworkable
Cause some people want to get something for nothing.
They just plain don't want to pay for other people's inventions and creations.
This group includes "free and open source" software folks as well as large corporate predators (Actually, the latter are not opposed to patenting "math" - as long as they own those patents)
BTW, pure "math" is unpatentable.
But concrete and useful application of math to some real world problem IS patentable, just like anything else .
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Well Said
Our mathematical friend needs to realize that you cannot patent facts.
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Software Patents: Just say "No".
Software is neither, therefore software cannot be patented.
The only situation where software could be patented would be a software implementation of a documented mechanism, such as an encryption algorithm.
If you allow software patents then you open a can of worms and you end up with people running around trying to patent everything that is not nailed down - anyone remember Amazon's infamous "one-click" patent?
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Reply to Masnick
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follow-up
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no basis
And so he should be, since that is the only relevant debating point.
It doesn't matter how many academics have written strokey beard papers discussing the ramifications that accrue from the premise that software is patentable if the entire premise is a nonsense in the first place. Without solid axioms the theories are worthless, thus the remainder of the analysis is void until you have dealt with this most fundamental issue.
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Reply
Of the academics I refer to who highlight the benefits of patents, few of them take it as granted that software should be patentable. Thats not an assumption of their work.
For instance, economic arguments that point to patents' beneficial effects on market entry, incentives to undertake high risk/capital intensive R&D or help firms survive unstable markets do not rely on the premise that software should be patentable.
I believe patent issues are more complex than most people are aware of, and I'm definitely *not* the expert on why or why not software should enjoy patent protection. But I will say that arguments for/against software patents should look at their effects on innovation, not how well they comport with (sometimes extreme) notions of libertarienism or free markets.
These latter arguments, in my view, mistake a simple rule of thumb: universal principles can only be derived only when all forces are accounted for. Apparently, those who would argue against software patents, based on their (extreme) beliefs on libertarienism or free markets discount anything residing outside those abstract ideals.'
They is a possible liniqustical mistake in arguing against (or for) software patents based on abstract ideals: "libertarianism" and "free markets," in terms of technology policy, should be applied on the macro level. Innovation helps us achieve the kind of freedom associated with the values of libertarianism and free markets; innovation need not necessary reflect these values itself.
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Re: Reply
You did indeed, and I read those arguments, I didn't just dismiss it out of hand. Unfortunately I found the arguments specious and based on a number of fundamental misconceptions and very narrow interpretations of what the nature of knowlege, progress and innovation really are in a modern context. It's a shame this thread will disappear soon and we won't get the chance to throw the debate around very much but I do think one or two things are worth saying that address the debate on these terms.
Since the 19th Century when patents served a very useful and beneficial purpose almost everything in science and technology has changed. A gulf between the capabilities of the individual or small business innovator and the largest technology players with regard to innovation in the tangible physical realm has become vast. In this domain the big players no longer need patent protection from upstarts, only each other (vis industrial espionage). On the other hand the potential for the small innovator to now produce valuable software has mushroomed since no resources other than raw intellect and time are required. We can no longer treat these two domains as equivilent. The development cycle and product lifetime of software has so diminished that the small innovator is capable of producing better software with a faster time to market, yet software patents would favour the larger players thus resulting in a reduction in overall innovation.
Secondly there is nothing really "extreme" about the view that software patents are a logical absurdity, and it comes not from a libertarian stance but from a purely logical one with which any real scientist who can understand the issues will agree. Software is mathematics - that's all there is to it. Everything from the simplest desktop calculator to the largest distributed network applications reduces to no more than arithmetic. Certainly innovators deserve protection for their labors, which they are already adequately afforded by copyright. But one cannot be permitted to patent abstract fundamental ideas lest one enter reducio ad absurdum, for example, I patent a method of multiplication by iterative summation of integers. Sounds fair enough right? No. This is *the singular* definition of multiplication according to number theory. Anybody holding such a patent would essentialy be able to hold the entire world to ransom, and there are an infinite number of such axiomatic devices, most of which have existed not merely for centuries but for millenia. The original proponents of the patent got it right 200 years ago - you may patent a tangible manifestation of an idea, but you may not patent the fundamental basis of that idea. Therefore you may not patent a mathematical formula or an algorithm. Of course you may certainly patent an implementation of that algorithm in a given language, and indeed copyright that (which is far more effective in every important sense). Those protections already exist, thus software patents are not merely an abhorent and dangerous idea, they are redundant, thus can only serve as tool to restrict the innovation of others.
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- used completely original code
- consumed half the disk space
- did everything 4 times as fast
- never crashed
- had no security holes
- sold for half the price of software xx
Would I be infringing on their patent and/or copyright and/or intellectual property?
Would it matter?
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Re:
Then you would be infringing on somebody's copyright
>did everything that software xx did
Then you would be infringing on somebody's patent
>Would it matter?
Yes, it would...
if your program does something important that took original inventors 5-10 years of research to come up with, or some stroke of real genius, like RSA or Karmarkar algorithms...
Now go read some literature and stop posting ignorant comments
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Re: Re:
Ok, fabolus, let's patent also mathematics, as you suggest (and software IS mathematics).
a) I do the research, I discover a method, I implement a program, then you come to my door and tell me that you have already patented "encryption" and I have to quit business or give you huge amount of money
b) what if the principles on which RSA is based would have been patented? Is easy figure the *economical* advantages of being able to patent the LAST STEP in the evolution of ideas, without the burden of having to deal with patents for all the necessary previous ones.
c) I do the research, I patent the basic *necessary* algorithms for any encryption, and FORBID everyone else to use them for 20 years... good luck for your society / economy / whatever
Read again the article about what are patented intended for, and see how much society is beneficing from software patents, please
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You again?
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Re:
"If I wrote a program suite that looked exactly like software xx,"
You would be violating the copyright of the GUI components
of the application since a graphical layout is a design pattern.
Unless you strictly needed the exact layout to meet functionality
requirements you would be potentially misleading and confusing
people that your product is theirs. To all intents an purposes the interface of a program can be treated separately from its core functions and there is no need to emulate the "look" of another product unless you are deliberately trying to mislead, which is obviously wrong.
"did everything that software xx did"
Good for you, you're in the clear. Otherwise there would be only one
desktop calculator, only one word processor etc.
"- used completely original code
- consumed half the disk space
- did everything 4 times as fast
- never crashed
- had no security holes
- sold for half the price of software xx"
Again, good for you, you deserve to make capital or receive recognition for your endeavours.
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Semantic wordplay
This is semantic wordplay. "..in any other business, "invading" is known as "democracy." "in any other business, a "terrorist" is a "freedom fighter." Puleeze. Software is not "any other business" and these jerks know it. Software dev is *not* the fashion industry (which thrives on copying), or the auto industry (which HAS to copy - physical world constraints), or the music business (cultural mimicry). It's completely its own set of....oh Jesus, why am I wasting my energy on Masnick?
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