Recently the New York Times has run a series of articles about the patenting of software, and their general tone is that the patent system is “broken.” Now I haven’t a clue as to why anyone would make such a sweeping generalization, especially since it appears to be based in large part on the fact that there have been several high-profile court cases involving software patents in the past few months. (Unless they don’t like the rulings, of course. Or they don’t like paying license fees to the owners of the software.)
In thinking about these kinds of issues, I like to go back to the basics. Really basic in this case, because much of the controversy over software patents appears to revolve around whether the law should even provide creators with protection for software in the first place. It seems that a good place to start is by taking a look at a form of “intellectual property” that has been with us since the dawn of time and is still found today among indigenous peoples around the world—Traditional Knowledge.
Through our understanding of extant indigenous cultures, we can assume that ancient peoples believed that a tribe/region/community owned the creations and discoveries made by its members. Hence their dance, folklore, paintings, stories, medicines, and biological diversity were and are considered a form of property that the anthropologists who study this sort of thing refer to as Traditional Knowledge. For our purposes, the important thing about the concept of Traditional Knowledge is that it recognizes “secrets” and the importance that they have in preserving the value of creations and discoveries. This respect for the right of an individual or group to keep their knowledge a secret is analogous in many ways to the modern legal concept of trade secrets. In both cases, the owner of the knowledge is the one in charge.
Certainly we can all now agree that if I create something new, it is mine. It does not belong to “the realm” or to a king. This concept was codified 800 years ago in the Magna Carta, which had an enormous impact on our own Constitution, written in 1787 and ratified in 1788. This is borne out by Article 1 Section 8 (8) of the U.S. Constitution, which states:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .”
In 1790 the first United States Congress passed the Patent Act to effectuate these principles. This occurred only about 80 years after the British Parliament passed the first copyright law, the Statute of Anne, titled "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Copies, during the Times therein mentioned.” Now, why would the British Parliament and the U.S. Congress see the need for such laws? Obviously, to protect the rights of creators.
So the basic principle at the root of modern patent and copyright law is that the ownership and control of new ideas and ways of expressing them remain with the creator. This concept was not new, even in the 18th century. As we have seen, it is Paleolithic.
What we need to remember is that placing control in the hands of the creators cuts both ways. They have just as much right under the law to place their work in the public domain as they do to keep it a secret. So if I want to ensure that my software is available to the public free and unrestricted, then I can make it “open source.” No problem. A great example of open source in action is Wikipedia, one of the most beneficial developments in modern times. If I want to go even further and guarantee that any derivations of my software are also freely available and open to the public, then I can release it under “copyleft,”, which is a new form of software license first developed in 1988. And so we have the Linux computer operating system, which has been modified by thousands of programmers under a copyleft license, which itself falls within existing copyright law. Let me say that again. Copyleft falls within copyright.
In other words, copyright law gives the creator the right to allow broad access to the creator’s works. Back to basics.
To recap:
—Existing law is designed to give creators control over their ideas (patents) and the expression of their ideas (copyright). The law recognizes that creators have right to choose if, when, and how their work can be used, reproduced, or modified by other people.
—By seeking a software patent, the creator of a computer program is choosing to acquire the right to keep others from using it without permission.
—By granting a copyleft license, the creator of a computer program is choosing to give others the right to freely modify and use it on the condition that the modified version will also be freely available and open to the public.
So far I don’t see what’s broken about this system. In fact, by giving the creator the right to choose, it seems to me that the system is working just as intended. I don’t think the signatories of the Magna Carta and the Constitution would have had any problem with this. That’s kind of what they had in mind.
Oh, wait. Perhaps you don’t think software should be patented. You believe that since all inventions are essentially based on prior knowledge, anything purported to be “new” is merely a “remix” of what is already known, and therefore not patentable. You belong to the so-called “remix culture” as opposed to the “permission culture”—where you have to get permission to use what I have created. Well, sorry. Present U.S. law generally falls within the permission culture, and it says software is patentable.
OK, I exaggerated. There are actually many gray areas in the patenting of software. And let’s be clear: there is really no such thing as a “software patent” (even though that term is broadly used, including by me). There are only utility patents, design patents, and plant patents. That’s it. But since 1996, software has been considered patentable subject matter under utility patent law IF it makes a machine do something or it is transformational—if, for example, it converts an EKG reading into something else, like maybe an interpretation of the EKG reading. I think. And further, what seems to be clear is that business methods are not patentable. Maybe. Frankly, what is and is not patentable in the area of software has been controversial ever since the Supreme Court’s infamous 2010 decision in Bilski v. Kappos (http://www.supremecourt.gov/opinions/09pdf/08-964.pdf) (which has been widely criticized by the way).
But whatever nuances may be involved in determining which computer-related inventions are and are not patentable under U.S. law, there is no evidence that the system is “broken.” The system is operating rationally, and eventually the U.S. will have clarity on this issue. And to repeat, it seems to me that the system is sufficiently robust to account for any method of software distribution a creator chooses. Now, whether or not you want to pay a license fee to use someone else’s software is another question. But insofar as society respects property rights, the answer to that question is up to the creator, as it should be.
In thinking about these kinds of issues, I like to go back to the basics. Really basic in this case, because much of the controversy over software patents appears to revolve around whether the law should even provide creators with protection for software in the first place. It seems that a good place to start is by taking a look at a form of “intellectual property” that has been with us since the dawn of time and is still found today among indigenous peoples around the world—Traditional Knowledge.
Through our understanding of extant indigenous cultures, we can assume that ancient peoples believed that a tribe/region/community owned the creations and discoveries made by its members. Hence their dance, folklore, paintings, stories, medicines, and biological diversity were and are considered a form of property that the anthropologists who study this sort of thing refer to as Traditional Knowledge. For our purposes, the important thing about the concept of Traditional Knowledge is that it recognizes “secrets” and the importance that they have in preserving the value of creations and discoveries. This respect for the right of an individual or group to keep their knowledge a secret is analogous in many ways to the modern legal concept of trade secrets. In both cases, the owner of the knowledge is the one in charge.
Certainly we can all now agree that if I create something new, it is mine. It does not belong to “the realm” or to a king. This concept was codified 800 years ago in the Magna Carta, which had an enormous impact on our own Constitution, written in 1787 and ratified in 1788. This is borne out by Article 1 Section 8 (8) of the U.S. Constitution, which states:
“To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries . . . .”
In 1790 the first United States Congress passed the Patent Act to effectuate these principles. This occurred only about 80 years after the British Parliament passed the first copyright law, the Statute of Anne, titled "An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of Copies, during the Times therein mentioned.” Now, why would the British Parliament and the U.S. Congress see the need for such laws? Obviously, to protect the rights of creators.
So the basic principle at the root of modern patent and copyright law is that the ownership and control of new ideas and ways of expressing them remain with the creator. This concept was not new, even in the 18th century. As we have seen, it is Paleolithic.
What we need to remember is that placing control in the hands of the creators cuts both ways. They have just as much right under the law to place their work in the public domain as they do to keep it a secret. So if I want to ensure that my software is available to the public free and unrestricted, then I can make it “open source.” No problem. A great example of open source in action is Wikipedia, one of the most beneficial developments in modern times. If I want to go even further and guarantee that any derivations of my software are also freely available and open to the public, then I can release it under “copyleft,”, which is a new form of software license first developed in 1988. And so we have the Linux computer operating system, which has been modified by thousands of programmers under a copyleft license, which itself falls within existing copyright law. Let me say that again. Copyleft falls within copyright.
In other words, copyright law gives the creator the right to allow broad access to the creator’s works. Back to basics.
To recap:
—Existing law is designed to give creators control over their ideas (patents) and the expression of their ideas (copyright). The law recognizes that creators have right to choose if, when, and how their work can be used, reproduced, or modified by other people.
—By seeking a software patent, the creator of a computer program is choosing to acquire the right to keep others from using it without permission.
—By granting a copyleft license, the creator of a computer program is choosing to give others the right to freely modify and use it on the condition that the modified version will also be freely available and open to the public.
So far I don’t see what’s broken about this system. In fact, by giving the creator the right to choose, it seems to me that the system is working just as intended. I don’t think the signatories of the Magna Carta and the Constitution would have had any problem with this. That’s kind of what they had in mind.
Oh, wait. Perhaps you don’t think software should be patented. You believe that since all inventions are essentially based on prior knowledge, anything purported to be “new” is merely a “remix” of what is already known, and therefore not patentable. You belong to the so-called “remix culture” as opposed to the “permission culture”—where you have to get permission to use what I have created. Well, sorry. Present U.S. law generally falls within the permission culture, and it says software is patentable.
OK, I exaggerated. There are actually many gray areas in the patenting of software. And let’s be clear: there is really no such thing as a “software patent” (even though that term is broadly used, including by me). There are only utility patents, design patents, and plant patents. That’s it. But since 1996, software has been considered patentable subject matter under utility patent law IF it makes a machine do something or it is transformational—if, for example, it converts an EKG reading into something else, like maybe an interpretation of the EKG reading. I think. And further, what seems to be clear is that business methods are not patentable. Maybe. Frankly, what is and is not patentable in the area of software has been controversial ever since the Supreme Court’s infamous 2010 decision in Bilski v. Kappos (http://www.supremecourt.gov/opinions/09pdf/08-964.pdf) (which has been widely criticized by the way).
But whatever nuances may be involved in determining which computer-related inventions are and are not patentable under U.S. law, there is no evidence that the system is “broken.” The system is operating rationally, and eventually the U.S. will have clarity on this issue. And to repeat, it seems to me that the system is sufficiently robust to account for any method of software distribution a creator chooses. Now, whether or not you want to pay a license fee to use someone else’s software is another question. But insofar as society respects property rights, the answer to that question is up to the creator, as it should be.
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