Linked by Thom Holwerda on Fri 20th Jun 2014 19:30 UTC
Legal

The problem, at root, is that the courts are confused about the nature of software. The courts have repeatedly said that mathematical algorithms can't be patented. But many judges also seem to believe that some software is worthy of patent protection. The problem is that "software" and "mathematical algorithm" are two terms for the same thing. Until the courts understand that, the laws regarding software patents are going to be incoherent.

If you ever find yourself arguing with someone who supports software patents - just link to this article by Timothy B. Lee. An excellent and concise look at where software patents come from, the inability of courts to understand software, and why the Supreme Court of the United States seems so hesitant to reaffirm its own rulings about the intrinsic inability to patent software. Key passage:

One reason the courts might hesitate to do this [put an end to software patents] is that it would be a big blow to the bottom lines of some of the biggest companies in America. Such a ruling would have invalidated thousands of dubious software patents held by trolls, but it also would have invalidated Amazon.com's infamous 1-click patent, the "data detectors" patent Apple used to sue Samsung, and Google's patent on its search ranking algorithm. Invalidating software patents would have wiped billions of dollars off the balance sheets of some of America's largest technology companies. The Supreme Court generally tries to avoid making waves, and those would have been some very big waves.

And there you have it. Large American technology companies want to have their cake and eat too - they supposedly support patent reform, but only reform that weakens the position of small players (which happens to include non-practicing entities) while strengthening their own positions.

Lee ends with the simile that I have used on numerous occasions in the past - one that perfectly sums up the inherent ridiculousness of patenting software:

The mathematical ideas in software, like the literary ideas in novels, are part of society's common intellectual heritage. Neither should be eligible for patent protection.

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Wrong question
by oskeladden on Sat 21st Jun 2014 21:19 UTC
oskeladden
Member since:
2009-08-05

Here's a question for you chaps. Is a computer program like:

(a) The telephone
(b) John Steinbeck's 'Of Mice and Men'
(c) The formula for Coca-Cola?

The answer is very obviously 'None of the above'. But when you say that a computer programme is best protected by patent, or copyright, or trade secret law, you are in essence asserting (a), (b), or (c) above. In reality, no existing form of intellectual property works to protect software.

One of the last files I dealt with before I gave up practicing law in the late 1990s was an inventor who'd come up with a brilliant LCD-equipped payphone. The idea was that it would be installed in villages in the third world to provide them with a basic form of internet access (so they could, for example, check the price of pepper, or fish, in the market and get a bit more bargaining power with money-gouging middlemen). The phone was powered by firmware, but it hadn't been written down in a way copyright would protect. How do you protect inventions of this sort?

The reality is that software is an entirely different class of intellectual endeavour, which needs an entirely different sort of legal protection. Patent, copyright, and trade secrets don't work at all. If we're going to stretch copyright to cover this, we'll leave a lot of holes, which people will stretch other forms of IP to plug. Sadly, this requires a type of out-of-the-box thinking that nobody really wants to engage in.

Reply Score: 2

RE: Wrong question
by galvanash on Sun 22nd Jun 2014 00:00 in reply to "Wrong question"
galvanash Member since:
2006-01-25

Here's a question for you chaps. Is a computer program like:

(a) The telephone
(b) John Steinbeck's 'Of Mice and Men'
(c) The formula for Coca-Cola?


Either b or c, depending on your preferences as the author, but definitely not a.

The answer is very obviously 'None of the above'.


Completely disagree.

In reality, no existing form of intellectual property works to protect software.


Why? Copyright seems to work pretty damn well to me, and trade secret can work in the right circumstances (An internet search algorithm for instance, software never exposed to the public at large).

The phone was powered by firmware, but it hadn't been written down in a way copyright would protect. How do you protect inventions of this sort?


I don't know, maybe write the firmware in a way that copyright can protect it? If you want protection, why would you do it in a way that doesn't let you protect it? There is nothing about firmware that precludes it from being copyrightable...

The reality is that software is an entirely different class of intellectual endeavour, which needs an entirely different sort of legal protection. Patent, copyright, and trade secrets don't work at all.


I personally think copyright and trade secrets are exactly enough - it simply doesn't deserve protection beyond that, because software has to run on something and that something is usually not something you have exclusive rights to. If you do (i.e. you have the hardware patents) then fine - that is a different story. Otherwise you don't get to block me from using my hardware in a certain way just because you discovered a particular method of doing something on it. If I independently discover the same method why should you get to tell me I can't do it? I bought a computer because it is a general purpose machine, I should be able to use it for any purpose I want to.

Reply Parent Score: 4

RE[2]: Wrong question
by oskeladden on Mon 23rd Jun 2014 17:30 in reply to "RE: Wrong question"
oskeladden Member since:
2009-08-05

Why? Copyright seems to work pretty damn well to me.


The reason copyright doesn't work is that a computer program isn't an expression of a creative, artistic impulse. When you protect 'Of Mice and Men', or for that matter an article on OS News, you're protecting the artistic expression of an idea - the thing being protected is, in essence, an attempt to communicate something to the world, or a subset thereof. All 'traditional' subjects of copyright shared this in common. Software doesn't.

A computer program is essentially a product. From the start of modern IP, the things which were protected in relation to a product were its function and features. Those who view computer software as a product are, similarly, seeking to protect its function and features. In the real world, if copyright doesn't give them the protection they want, people don't simply accept the lack of protection. Instead, they stretch something else within the law. In this case, that happens to be patents. And because only the very biggest and richest companies have the resources to afford lawyers able to do the stretching, this more or less guarantees that the law will only reflect their interests, and not the interests of society at large.

All this was so easily avoidable. If people had been a bit more pragmatic back in the 1980s, we could have come up with an excellent sui generis software property right, as we did for plant varieties and semiconductor designs. Instead, thanks to the copyright-only purists, we are now stuck in the worst of all possible worlds, in which software patents are growing and will continue to grow, and make a mess of the entire system.

Reply Parent Score: 3