I’ve been sitting on this item all day. Technically, it’s about patents and the like, and even I understand I’ve been beating this dead horse so often it almost looks like it’s alive. However, this is an interesting opinion piece by Craig Hockenberry, long-time employee at The Iconfactory, one of my favourite software development houses – these guys breath software and beautiful design, and employ one of my favourite artists, David Lanham. The gist of his story? Software patents are killing the independent developer scene.
Hockenberry’s piece recalls how software distribution was difficult and expensive before the advent of the web. “In the days where software was distributed on magnetic media, such as reels of tape, cassettes, or floppy disks, it cost a lot of money to get the product to a customer,” he recalls, “As a result, large companies and software publishers were the only ones with the financial resources to get these applications into a retail channel. There were very few independent software developers; and those who did exist were very small operations.”
The internet changed everything. Suddenly, it became dead cheap for developers to get into contact with their customers and distribute their software to them. This allowed many a small independent developer to work on their passion, while still earning a nice living.
The success of the modern mobile application stores, however, are having a negative effect on independent software developers. Sure, on the surface it’s looking great – easy distribution, massive reach – but at the same time, this success has attracted an evil small developers never faced before: IP lawsuits. The Iconfactory was hit by Lodsys, too.
“The scary part is that these infringements can happen with any part of our products or websites: things that you’d never imagine being a violation of someone else’s intellectual property,” he writes, “It feels like coding in a mine field.”
“From our experience, it’s entirely possible that all the revenue for a product can be eaten up by legal fees,” he continues, “After years of pouring your heart and soul into that product, it’s devastating. It makes you question why the hell you’re in the business: when you can’t pay salaries from product sales, there’s no point in building it in the first place.”
He continues that only the large companies have the funds and means to bear these costs. “My fear is that it’s only a matter of time before developers find the risks and expenses prohibitive and retreat to the safety of a larger organization. We’ll be going back to square one,” he adds.
The sad thing is that the only ones who can change this are the ones who have no interest in changing this at all. Apple, Microsoft, Oracle, IBM, and so on, all have a vested interest in keeping the patent system as it is – the only changes they are lobbying for are changes to make it harder for smaller entities to use the patent system. While this may stop lawsuits going from patent trolls to the larger companies – it will also turn the patent system into even more of a stomping ground for these same large companies than it already is.
The large companies will lobby for changes to the system that will protect them from smaller companies, but this in turn also grants them the ability to just stomp all over other people’s works. Filing for patents is already prohibitively expensive, so small developers can’t build up their own defensive portfolio, leaving them wide open to abuse from the larger companies – who will in turn use their portfolios to block small developers who could pose a threat to their business.
The picture painted by Hockenberry is grim, but in my view, reality is far worse. If things like a grid of icons can be patented, claims that it is impossible to write a single line of code without violating a software patent suddenly become a whole lot more believable. To make matters worse, we have vocal individuals who are actually actively advocating software patents, only because not doing so would put them at odds with their pet companies.
Leon Festinger would chuckle.
I entirely concur with his statements. Our small shop (2 core developers) realize that we could be easily killt just by the threat of a patent lawsuit. And we’re just too small to deal with all the overhead of constantly data mining the patent system ourselves.
We do employ legal counsel as part of our operations.