rhythmx's Journal: unorganized rantings on software patents

Software Patents

I'll start off with a notice to those who would say that I am out to
undermine all the work of programmers everywhere, in hopes that I may
receive a free lunch: I am a programmer, I understand what it is to
see a project through to its completion and hope for it's continued
success. A free ride has never been my goal. Furthermore, it is
another misstatement to say that abolishing software patents would
somehow make software available at zero cost.

I propose the abolishment of software patents. As software copyright would
still be in effect, the laws governing software would be nearly
identical to the laws that cover movies and music. Actually, it is the
case that the industries themselves already operate in much the same
way. Software does require many man-hours and money to create, but a
movie can cost hundreds of millions of dollars to produce, yet it is
still accepted that it does not need the protection of patents.

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1) Movies, music, and software each exist in a purely logical
form until interpreted by a machine or person.
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A "compact disc" is no more software than it is an ebook, movie, or
music. A compact disc is a round piece of plastic with a special layer
of metallic foil grafted to it. This metal layer has a finite number of
"pits" at regular intervals... A "piece of paper with ink on it" is no
more an essay than it is a sketch of Bill Clinton or a Rorschach Test.

Point being: Data is abstract. The data embedded on any medium is only
data because it is interpreted as such. It is the medium-specific
syntax (the spacing, dimensions, color, etc..) that separates the data
from the random.

This syntax, however, is only truly defined by the human spirit. For
example, I can write "APPLE" here, and you will summon up any of
thousands of delicious thoughts, but there never really is an apple
involved, merely the notion. The same holds for the arts and a
painting or video of an apple. Or even a person speaking -- It takes a
human mind to relate ideas to syntactical structures.

A key point to understand is that with any kind of art, one can
familiarize themselves with it to the point that they can re-live the
art inside of their head. If one were to memorize a song, their brain
now holds that data just as CD would, although a human lacks the
facilities to failthfully reproduce it. The same goes for software,
it's
the ideas that matter -- the order of the bits, not their physical existence.

Would you grant someone a patent on something that can exist entirely
in ones head? Would you prosecute someone for copying software into
their brain?

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2) The industries' products are licensed but almost never sold.
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Due to the fact that the products they offer are not the physical
mediums in which they are packaged and are simply abstract data,
people realized early on that they could no viably sell data. Data is
much too easy to replicate, and it is not a viable business model to
sell data since one copy is effectively equal to one million copies.

So instead of selling data, authors retain their ownership and sell
contracts for use of the data. For movies and music, this contract is
dictated by law in the form of a copyright. For software this takes
the form of a copyright and (usually) the addition of an EULA
(End-User License Agreement), which is the contract that usually
appears when you install commercial software and asks you to agree to
its terms.

This is an obvious departure from the normal notion of property. You
may own a few CDs, some DVDs, or a few CD-ROMS but you don't own any
software, music, or movies. What you paid for is permission to use the
data under certain conditions.

If the industry has no intentions of selling you the invention and
only want to sell you restricted copies, why should society grant it a
patent? Any competitors are already bound by copyright law not to
steal the product. What the copyright does not do, however, is prevent
a useful bit of human ingenuity from a work being used to further a
different cause. With a patent, a patent holder can issue a
cease-and-desist order for any use whatsoever of his patent. With a
copyright the most that can be asked is royalties if the content is
being used for profit. You have the right to paraphrase!

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The patent system is overworked, and has become counter productive to
the economy.

It has been noted by many people that certain discoveries are destined
to happen, illustrated by the fact that many inventors will all
simultaneously invent the same thing independently of each other. This
is partly a result of research, after so many new concepts have been
published it does not take a genius any longer to see that a new
invention follows logically from the data before him. Many inventions
are not really that obvious, and the winner of a "photo finish" is
awarded rights to that concept for 20 years.

Society has become so used to the idea that the result of their labor
must be protected and profited from, that it seems to people that
doing nearly anything should grant them the right to patent that.
Because of this, the USPTO is bogged down by thousands of patent
applications a day (in the VERY least.) Each patent many pages long,
filled with complex diagrams and legalese. Each one is worded so
intricately that you need to be a lawyer and an engineer to understand
it fully. On top of that the patent office can't afford to hire
competent clerks to process it all, resulting in and endless cycle of
patents being accepted/rejected without proper attention.

The general formula is: Submit goofy patent. Pay money. Be rejected.
Hire lawyer. Pay money. Appeal patent. Pay money. Pay more money. Get
a shiny new patent.

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I see no justification that software should be patented. It is in
essence a part of the same entertainment industry, and should be
regulated likewise. It doesn't make the author more money, it doesn't
help to advance science, and it inhibits ones ability to express ideas
freely.

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some absurdities

The program that decrypts DVDs (de-CSS) into a form where it can be
played without a special player is in violation of the DMCA copyright
act. Since software is really just one large binary number, we are
able to verify that the de-CSS number is prime. Therefore, there is a
prime number in violation of the DMCA. -- AN ILLEGAL PRIME NUMBER.

If software can be expresssed as a number, then let "Windows XP
Pro"='X' and let "Visual Studio .Net"='Y'. The number 'X+Y' ('Z' for
short) is essentially of no use and certainly would not be software
any longer or be covered by copyright. Therefore, one could distribute
'Z' without restriction as long as it doesn't come with 'X' or 'Y'. If
someone were to obtain the legal number 'Z' and a legal copy of
"Windows XP Pro", they could perform the operation 'Z-X'; yeilding 'Y'
or "Visual Studio .Net" -- AN ILLEGAL SUBTRACTION.

Suppose I write a piece of software that starts at the number 1 and
burns that to a cd. When that finishes it would add one to the number
it just burned and burn again, repeating forever. Eventually it will
get to a number that is equal to a copyrighted work -- AN ILLEGAL
OUTPUT.

If you encrypt a copyrighted work and throw away the key, keeping
anyone from being able to read it again -- Is it legal to distribute
the encrypted copy that nobody can read or use?

--Sean