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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RE[2]: Wrong question
by oskeladden on Mon 23rd Jun 2014 17:30 UTC 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

RE[3]: Wrong question
by Alfman on Mon 23rd Jun 2014 18:40 in reply to "RE[2]: Wrong question"
Alfman Member since:
2011-01-28

oskeladden,

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.


Well, you refer to "artistic expression of an idea", however copyright protects all expressions of an idea whether it's artistic or not. And in any case art is in the eye of the beholder!

As a developer, I view code as an expression of my creativity just as much as a novel is an expression of creativity for an author of literature. Software patents limit my ability to be creative without the risk of lawsuits.


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.


Copyrights give us all the rights we deserve without overstepping the rights of others to build their own implementations through their own efforts. Can you explain more about what you are suggesting that you would change?

Edited 2014-06-23 18:41 UTC

Reply Parent Score: 2

RE[3]: Wrong question
by galvanash on Tue 24th Jun 2014 00:22 in reply to "RE[2]: Wrong question"
galvanash Member since:
2006-01-25

The reason copyright doesn't work is that a computer program isn't an expression of a creative, artistic impulse.


Did you maybe practice IP law in another country? You profile doesn't say where you are from... In the US, software is explicitly included as a type of work covered by copyright.

http://www.copyright.gov/help/faq/faq-protect.html

What does copyright protect?

Copyright, a form of intellectual property law, protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed.


Even ignoring that, your premise is just flat out wrong. If designing a logo is artistic expression, or a building or bridge, then so is software. It arguably may not be as "pure" a form of artistic expression as poetry or literature, but it is creative expression non-the-less.

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.


That is absolutely false. You are protecting a particular composition, i.e. your individual mode of expression - the idea being expressed is absolutely irrelevant in copyright law. Are you sure you are a lawyer?

Those who view computer software as a product are, similarly, seeking to protect its function and features.


Speak for yourself. I have no interest in protecting the function and features of software I write. It is the product of my work, a particular composition of a solution to a problem. I may want remuneration if someone else uses it, whether as is or as the basis for their own work, but if someone else wants to create their own software that performs a similar function without the benefit of my work, that is their mountain to climb. Why should I care?

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.


This one I will sort of agree with you on. In fact, an almost exact interpretation of the SCPA applied to software would be ideal imo.

http://en.wikipedia.org/wiki/Semiconductor_Chip_Protection_Act_of_1...

That said, I don't think you would like the result if that were the case. Specifically, the SCPA:

1. Dos not protect functional aspects of chip designs. As such in practice it would offer almost no further protection than copyright already does when applied to software.

2. Does not protect against reverse engineering. This would be great imo, because it would explicitly codify in law something most software engineers already think should be the law. Namely that creating software that does the exact same thing as someone else's without the benefit of ever seeing their implementation is a perfectly legal endeavor.

That same legal rationale that was used to justify these particular exceptions in the SCPA also exist in software, for exactly the same reasons...

Reply Parent Score: 2