[Patents] PATNEWS: Software copyrights as threatening as software patents?

[Gregory Aharonian srctran@world.std.com]

!20010221  Software copyrights as threatening as software patents?

    One of the unsubstantiated accusations against software patents
(being heard in Europe and in Open Source circles these days) is that
they somehow restrict freedom of programmers to innovate any more so
than what technologists experience in other fields of technology where
there are patents.  By any measure, the volume of source code and
algorithms and systems, new and/or updated, appearing on the Internet
and in printed publications, continues to grow with little evidence of
restrictions and/or restraints on programmers.

    Not only is there little real evidence of this loss of freedom due to
patents, but the alternative, relying on copyright, is just as bad, and a
factor that has to be distinguished in any statistical reliable measure of
IP restraints on programmers to innovate.  I cite the following paper on
copyrights:


        Commentary: black holes of innovation in the software arts
        Berkeley Technology Law Journal, Spring 1999

        To promote technological progress, the intellectual property
        system relies on a careful balance between free access to
        information about products on the market on the one hand,
        and the encouragement of investment in innovation through
        the exclusive rights of patent, copyright and trade secret
        laws on the other hand.  In the software arts, including
        e-commerce, the system is unbalanced by the tendency of
        copyright law to isolate technology in pockets controlled
        by the original author, and thus to act as the gravity of
        "black holes" of innovation.  This paper comments on the
        role copyright plays, independently and in concert with
        patents, in blocking innovation in the software arts.


So the IP nirvana of relying exclusively on copyrights for software to
escape the mostly hypothetical loss of freedom of patents, is illusory
- software copyright can block software technology innovation as well.
I say 'can', because there is little proof that such blocking is going on,
and any such data will somehow have to distinguish blocking due to software
copyright from blocking due to software patents.  I doubt any economist
has data or models that sensitive.

If anything, the threat from copyright is more severe than from patents
because copyright's ability to block innovation lasts 70+ years, as
opposed to 20 years for patents (and not even for patents, since most
patents go into the public domain in less time (about ten years) as owners
stop paying maintenance fees).  So assuming those advocating software
copyright are accepting the ability of the copyright owner to control the
use of the copyrighted software (otherwise the copyright is useless), then
those advocating software copyright are advocating something that threatens
loss of programming freedom for a much longer period of time (and without
getting the benefit of the structured and/or enabling description of the
new software technology that patent specifications provide).

Any alternative to software patents, some sui-generis system, most likely
some hybrid of copyrights and patents, will find it hard to escape this
ability of software IP owners to control and block others from using their
new ideas - control is control - sui-control is control.  Since any
sui-generis system will find it hard to create a better mechanism for
structurally disclosing new functionality than using patent specifications
and claims, the only real motivation for a sui-generis system is to shorten
the monopoly time period.  If so, just propose that for software patents,
instead of having to create a whole new IP system and bureaucracy (or the
alternative, propose that maintenance fees be raised).

I will discuss at a later date the mathematical illogic of applying 
copyright to software (and any copyright-like features in any new
sui-generis system), as well as the idiocy of treating digital hardware
and software patents differently (i.e. software patents are nothing more
than a meta-description of a set of hardware FPGA patterns).

So I find it strange that people so worried about the losses of freedom
of programmers are proposing a reliance on copyrights which can be more
harmful to programmers for a longer period of time. Is the strategy to
first get rid of software patents, and then using mostly the same
arguments, get rid of software copyright, and therefore any form of
IP protection for software technology?


Greg Aharonian