[Patents] the patent movement and the copyright debate

[PILCH Hartmut phm@a2e.de]

> > First, the court decisions favoring software patenting only partially
> > explains the rise in software patent applications.
>
> If you replace these decisions by another set of decisions (such as those
> made in Europe in the 70s), there would be no software patent applications
> at all.

which means that the CAFC decisions are a sufficient and necessary
condition for the existence of software patents.  Of course there may be
further explanations on how the CAFC was motivated to take the course it
took, but those are beside the point.

> > The authors ignore
> > the parallel set of court decisions that weakened copyright protection
> > for software, which drove many to the patenting side.  The investment
> > climate also became very favorable to the software industry in the 1990s,
> > which also partially drove the increase in software patent applications.
>
> This again is part of Greg's myth that has been refuted in long arguments.
> I think it was Ramon who quoted the interface copyright decisions and
> explained why copyright on these things is dubious had had to be weakened.

In fact it was not weakened, but its extension was prevented.

But what is really wrong with Greg's argument is that it makes some tacit
suggestions.  E.g. the suggestion that there is a "copyright side" and a
"patenting side", and that there is a connection between different courts
that decided on these matters, e.g. that it was agreed that copyright
should be weakened and patents strengthened so as to fill the gap.

The opposite is true.  Those who were against interface copyright were
also against software patents.  There is a famous opinion research study
among programmers of large corporations by Dr Effy Oz from 1998.  84% of
programmers and 54% of laywers were against both software patents and
interface copyright.  (This survey did not include patent lawyers.  Among
them you would probably have gotten something like 0.5 %.  And they are
the ones who got to decide the issue.)

This makes it clear that there is no gap to fill.

It has just happened that the patent system has been expanding during the
last decades and that it has a strongly entrenched lobby of patent experts
promoting it, united by a strong faith and strongly entrenched in large
corporations such as IBM, Siemens and Toshiba, all of which have large
patent departments, because they have always been engaged in the hardware
business.  And it has happened that these large corporations have found it
convenient to jump on the patent law bandwagon.  Just as Greg, Prof.
Endres and even some people in small software companies have been inspired
by the power fantasies induced by the patent system.

This is a question of political economics, not one of merits or demerits
of software patents or interface copyright.

Pamela Samuelson (law professor), Mitch Kapor (Lotus founder) and a few
others have tried to launch a discussion on a "special-tailored software
protection scheme" that was to offer more than copyright, namely a
protection of software investment against cloning, for an adequate period
of time (2-3 years).  See the references under

        http://swpat.ffii.org/stidi/basti/

Yet, the experience of the Samuelson/Kapor manfesto shows that nobody was
really interested in this additional protection.  Instead, the patent
lobby got its way, and those who dreamt about "extra protection" for
whatever purpose, jumped on the patent bandwagon.

One could compare this mechanism to Germany of 1933.  Of course there were
all kinds of well-meaning "conservative revolutionaries" who wanted to
improve the evident insufficiencies of the democratic system.  Some jumped
on Hitler's bandwagon, others resisted the temptation.  Heidegger is a
typical example of an apolitical political fantasist who failed the test.
But he recognized his error very soon.  When a big political wave comes
along, there are always people who dream about being able to ride on it
and steer it into the direction of their wishes.  But these people will be
disappointed, because the political wave has nothing to do with the merits
or demerits of a certain system, and it is not governed by people who are
interested in any arguments about such merits or demerits.  Theorists of
the "conservative revolution" or of "improving copyright" may be able to
ride on the wave for a while, but they will be thrown off and derided as
"useful idiots" (Lenin) eventually.

-phm