Property rights versus... property rights ?!?
Posted by davidmcnab 9 years, 8 months ago to Business
It may soon be the case that when you buy a car, you won't actually own the car. Auto makers are wanting to extend the concept of intellectual property rights to prevent car owners from modifying or even repairing their own cars.
I grew up in a time where if I bought something, the property rights conferred by the sale allowed me to do whatever I damn well wanted to it - use it, break it, burn it, change it - as long as I didn't do it to commit a crime.
Nowadays, property rights in relation to physical goods appear to be getting weakened dramatically, so when you "buy" something, all you're actually getting is possession and exclusive use, possibly for a limited time.
Whatever happened to *actual* ownership?
I grew up in a time where if I bought something, the property rights conferred by the sale allowed me to do whatever I damn well wanted to it - use it, break it, burn it, change it - as long as I didn't do it to commit a crime.
Nowadays, property rights in relation to physical goods appear to be getting weakened dramatically, so when you "buy" something, all you're actually getting is possession and exclusive use, possibly for a limited time.
Whatever happened to *actual* ownership?
This problem stems from regressives screwing up contract law (bear with me it’s a long story). Some law professors though contract law needed to be updated and so they created the UCC which applies to certain types of contractual transactions. One of the requirements is an implied warranty of merchantability (meaning the warrant was required regardless of what the contract said). Unfortunately, in the early days of standalone s/w the products could not meet this warranty. As a result, they decide to license the s/w rather than sell it. This took them outside of the UCC and the implied warrant. Because the s/w is licensed not sold then it avoids the first sale doctrine. Also because the ability to enforce and obtain patents directed to software inventions was limited, s/w companies relied on their copyrights (which were weak), and their licensing agreements. As a result, their licensing agreements stated you would not reverse engineer, modify, or even look at the source code (of course they never provided it). However, I do not believe the auto companies sell you the car and license you the software. So I don’t think they have a leg to stand on under standard copyright law. But the DMCA may apply if the s/w is encrypted.
The UCC and weak or non-existent patent protection for s/w in the early years caused a number of other problems. Including that when you got the s/w you could not modify or integrate it into other s/w. This would be like buying a car and not being able to put different tires or a different muffler on it. This clearly frustrated many who were sophisticated in s/w which started another bad solution – radical open source (non-radical open source makes sense for many things – think of standardized interfaces). This would not have happened if there had been strong patent protection for s/w implemented inventions and the UCC did not have the implied warrant of merchantability.
So once again we see one idiotic do good thing by regressives over 50 years ago and one anti-property move by regressives over 40 years ago compounded into numerous problems – AND the solution is more patches rather than solving the underlying problems.
I think it's more like writing a novel than building a device. Would you patent "boy meets girl" as a theme, or would it be patented if the boy was from a poor family and the girl wealthy? Stories, like software are built of a collection of common themes that are used to geneate a whole.
As to finding out the relevant patents, the problem is that, to a degree, all software deals with much the same problems: storing data, organizing data, selecting data, managing memory, communicating with the user via various interface techniques. It is theoretically possible for any routine you write to duplicate an algorithm that someone uses for something completely different. Actually it probably duplicates someone's approach. Do they have it patented? Do they have something else patented that the description could be interpreted to cover your algorithm?
It may be that our biggest risk is from a competitor, but it might also be from a patent troll who owns a patent for converting an ascii character to numeric by subtracting asciii zero from it. (God help us if someone's patented that!) The patent can be flawed but mounting a defense would be ruinous.
The software industry survives, for the most part, because most companies don't release their source code so you really can't tell what patents they are infringing. The big players do as you recommend and get a patent or two -- not to protect their IP but as a defensive strategy in case they get sued.
If software patents were completely overturned -- and that may, in fact happen, I don't think that anyone would decide not to invest in software. If anything progress would accelerate.
Copyright, on the other hand, we all count on.
The overwhelming evidence is that those countries and technologies with the strongest patent protections create almost all the new technologies and have the greatest technological dispersion.
TRY USING FACTS - just once
When patents ARE used on the software industry, they are used to discourage innovation, to allow companies with the the resources to use litigation rather than creating new products to maintain market share.
Binary number 48 is ascii 0. I thought I was joking, I've written that routine dozens of time. Fortunately, the patent seems to be only for a vector processor so all existing software doesn't infringe on it. But it does show that for pretty much any routine you can come up with there is arguably a patent that might address it. As a patent expert you can tell the difference, but I can't submit every sub routine for a patent search.
Let's look at a typical piece of software - for example, a website for e-commerce and social media. In that software, there would be probably around 40,000 lines of code, costing around 3 person-years of effort, worth maybe $500,000. Within that code, there would easily be 1,000 separate programming techniques, for data input, validation, storage, search, retrieval, presentation; also, payment gateway interface, integration with other servers, authentication, numerous social media algorithms and so the list goes on.
A comfortable residential house costs $500k and takes only one property title search, costing a few hundred dollars tops. This hypothetical piece of software costs $500k but requires 1,000 patent searches. An exhaustive patent search for each programming technique would easily cost over $1,000, due to the way so many software patents are written up. So our $500k program is costing over a million dollars just to vet it for patents.
And even this doesn't guarantee some patent troll won't turn up and demand a few hundred thousand extra for license fees, just a bit less than what it would cost to have the patent overturned in court.
I've written will over 1,000,000 lines of code. My current product contains 700,000+ lines of code. I write original lines of code every day, if you define original as ones that were created by my personal creativity rather than copied from somewhere else.
If you mean original because no one in the world has ever written a line of code like it -- who knows, I certainly don't.
US 20080281766 A1 "Time Machine Software"
A method and system for creating human robots with psychic abilities, as well as enabling a human robot to access information in a time machine to predict the future accurately and realistically. The present invention provides a robot with the ability to accomplish tasks quickly and accurately without using any time. This permits a robot to cure cancer, fight a war, write software, read a book, learn to drive a car, draw a picture or solve a complex math problem in less than one second.
Congratulations for proving that you are an ignorant, anti-property rights second hander.
If you told your client there were no patents infringing on his invention because it hadn't been issued yet, and then it was, he'd be in trouble.
I'm very much in favor property rights. I just think that copyright law is more appropriate than patent law for protecting software creativity.
But there is a point. There is a lot of junk out there and it's hard for a layman to actually sort it out.
So your answer, which you must admit is a bit self serving, is "hire me to do it."
But Davidmcnab has generated a good example of just how impractical this can be in the real world of software designs. In small controller applications maybe, but when putting together applications involving tens or hundreds of thousands of lines there are many algorithms in place. Legal vetting of every one of them would cost vastly more than the development.
Most of the innovation in our industry is being created by small groups of start-ups. We innovate not because we can get a patent and make other people license the idea we had this morning but because we can create products that will win in the marketplace -- not the courtroom.
Much like authors, copyright protection is far more appropriate. Everything you write is automatically copyrighted, you don't have to send your days code off to the lawyer to have the various routines searched for.
When Jan and I started Schuyler House our paychecks were sometimes just enough for groceries. At that time we were heavily developing lots of different routines to do different things. There was no way we could try to patent all of them.
If we use the patent model to protect our software IP then small companies like us never get started.
one of the first things a buyer asks when you decide to sell your company is, do you have a patent portfolio?
Shouldn't we be encouraged to develop new things instead of replicating others ideas? A patent does not keep someone from their industry. It does not even give the owner the right to practice the invention. IF you know what's out there, shouldn't companies find ways to either license what they need and do not want to develop or develop around existing inventions? In the 1800s, the same thing happened with sewing machines. They were were in a disruptive inventive state, and people were against those patents just like people are against software patents today. People will always be against patents. Their reasons are not based on reason. Look at your first sentence to me-"I believe.."
Another driver for me in this was the vibrancy of the open source community. The open source movement has dramatically lowered the entry cost for new players, which has stimulated huge creative effort. Bill Gates became the richest man in the world largely from his astute decision to add open source networking software (the BSD Unix TCP/IP stack) to Microsoft's Windows operating system. Today, more than half the world's websites rely on open source software (Apache server). More and more cellphones rely on open source software (Android phones, using the Linux operating system kernel).
And there's another aspect of open source which would delight the Gulchers - the ability to audit the code and discover if some looters have planted surveillance backdoors in there!
Anyway, here's one of my biggest frustrations as a developer: software that does not allow itself to be interfaced with other software. I find your suggestion interesting - that stronger patent protections might have had a more liberating effect on software, by removing the need for software publishers to cripple modification and interoperability.
This still leaves the problem of patent discovery, however. There is a mass of software patents written up into vague, confusing, needlessly abstract terminology, which makes it difficult, time-consuming and expensive for a developer to find out if the code they're writing actually infringes on someone's patent.
I wonder - could there be a regime which maintains the inter-operability, transparency and low entry barriers of open source, while maintaining intellectual property rights which are cheap and easy to stake out, defend and (in case of others' IP) discover and uphold?
If I come up with an idea on how to handle the problem I'm working on, and actually I have to come up with quite a few ideas for each problem, I have no way of knowing if someone else has patented something that is enough like the idea I came up with on my own that I could be infringing it.
In an earlier part of this discussion, you mentioned that Dale would take hours of examination to examine applications like I cited -- and he's the expert. Where does that put me as a layman? How can I possibly write code when several times a day I run the risk of infringing?
The routine I'm working on today (or should be working on instead of typing) will query an internet database for some patient information. I am considering caching it in my database to save future queries. Lots of software does this kind of thing, all the browsers do. Is there a patent? Should I not write the routine? How much do I invest in searching out this issue (I am not asking for free help here). This is just a minor part of a minor feature. This happens all the time.
If the patent office actually limited software patents to things that had the 'spark of inspiration' as opposed to the "Well duh" factor, it might be different. You aren't supposed to be able to patent things that are routine development. You aren't supposed to patent things that are prior art. But as a small company one can be damaged by a patent that would never survive a challenge.
But this 'anti-public-domain' philosophy is by no means constrained to just software. The ultimate aim of this philosophy is that there should NOT exist ANY form of activity, which can be used towards generating income, which isn't patented, or in the process of being patented.
Parallel to this is the tendency of Congress to pass copyright-extension bills every time the copyright on Mickey Mouse is about to expire. Astonishingly, SCOTUS believes that an endless series of extensions does not breach the "limited times" clause in the Constitution.
As Gulchers, we need to rethink the costs, benefits and philosophies of the whole intellectual property framework. At what point do IP protections cease to inspire creation and invention and start obstructing it?
A classic case here is the pharmaceuticals, who have to spend upwards of $1billion to get original new drugs through all the blinded testing protocols on a large enough scale to prove safety and efficacy to the satisfaction of the medical profession. No patent? No drug. People get/stay sick and even die.
For drugs, defining an 'invention' is easy - a drug invention is simply a chemical formula for a therapeutic compound which has not previously passed testing protocols. This also covers the cases of drug companies studying naturally-occurring substances, isolating their active ingredients and validating their safety and therapeutic effect.
Note here that drug companies take out the patent on the complete molecular structure. They don't patent functional groups, such as a reactive site on a benzene ring. Also, they don't patent general classes of drugs, such as alkaloids.
For software, it's a different ball game. In software, all the tiny constituent parts of a software application can be separately patented.
As for precise definition of 'invention' that would stand up to legal scrutiny - I'll have to ponder on that for a while. The broad-brush answer would be William's earlier response about 'spark of inspiration' versus 'well, duh' types of creation. Nailing this down into watertight wording is the trick.
I think that it would have been inappropriate for me to weigh in on your comments on Wm, since we are colleagues. But I have no hesitation to ask you to stop calling davidmcnab (whom I do not know) a looter because his well-reasoned arguments disagree with yours.
Some of your points (ie definition of 'invention') are perceptive and make me reflect on them, but then you try to end the discussion by calling davidmcnab a looter. That is irrational: It is obvious that davidmcnab is quite concerned with both the ability to own and the ability to invent. That is not a looter, it is a producer.
Jan
When someone advocates that it is okay to take the work of other people, they are looters. His arguments are not well formulated. What he does is constantly change the subject. A common technique of the anti-patent and regressive crowd.
Did he provide any evidence for his point of view - no. When I pointed to the overwhelming evidence showing that patent and software development have gone hand and hand (Countries with the strongest patent laws have the strongest patent systems and vice versa) he changed the subject. At that point he is not only a looter, but the worst sort of Ellsworth Toohey second hander, which I will continue to point out.
From the 1981 introduction until the early 1990's there were virtually no software patents (I am aware that there were some). The industry flourished, many billionairs were made. For the most part our software was protected by copyright and restricted distribution. It worked well.
In the early 1990's the looters realized that there wasn't a lot of lobbying money flowing into Washington from the industry and the various investigations and anti-trust cases began. As a result they learned their lesson and are handing significant amounts of cash to the looters to be left alone. This is when software patents went from dozens to thousands.
I firmly resent your declaration that I, sitting in front of a computer writing code that I conceive of from my own brain without reference to anyone else's work am a looter. I make what I sell.
Somewhere there may be someone else who came up with a similar idea and patented it in a format that I am not qualified to read and certainly wouldn't help me design and test the code. I did not steal their work.
You and others in the patent industry, neither write code nor create applications for users. Instead, you want to build an infrastructure that requires us to pay you for permission to create. That is, as near as I can tell, the exact definition of a looter.
The underlying electronics that a piece of software can run on is far from unique and in fact can be any variety of things the emulate the required instructions including simulations.
I'm not against patents for electronics. That's a different world with far more discrete applications.
I'm not opposed to progress, I like it a lot -- we just have a idea as to how to achieve it.
(I don't know who decremented your count -- I have never decremented one of yours.)
In practice that would be far to complex of a circuit for anyone to actually build.
The same is true of a modern software program. You couldn't build a real electronic circuit that would do that. It is too complex.
It is that complexity that caused Texas Instruments to make the first microprocessor chip because hand held calculators were becoming too complex to design using electronic circuitry.
I do remember the era when software was actually wired into the machine. I didn't do it myself but watched someone working on one as we were getting the new system working.
It differs from wiring circuits primarily in the flexibility and vast complexity.
Especially when you tell us we don't know how software works. Now if you tell us we don't know how the law works you would be on firmer ground. I suspect my knowledge of software law is on a par with your knowledge of software development. We are both looking at the process as outsiders.
Clearly not every aspect of her philosophy was completely original. Should she have been prevented from writing it because some aspects had been thought of by other people?
I don't think that we are arguing about major philosophical differences. As near as I can tell, we have one key difference in opinion, that is whether an algorithm, independent of actual implementation, is protectable intellectual property. If we agreed on that, we would probably agree on most things.
If you don't wish to talk to me unless I am explicitly an Objectivist, that is your right. I won't, however abstain from commenting on things of interest to me.
We generate original software; we do not steal code from our competitors. The common screen and database functions needed to generated a product are in a common pool of tools - the slider at the right side of the box I am typing in is a good example. Any patents on these items are spurious and made by trolls, not by innovators.
We know what we are doing and we know that we produce original and innovative work. If you disagree with what we are doing, that is fine: I am long past the point where I expect the universe to agree with me. But labeling someone "looter" is counterproductive and insulates both parties from change.
You have some interesting points, and Wm and I have been discussing them at work. Hot and flaming labels get in the way of productive action.
Jan
Where I find this worrying is that each piece of real estate can only have 1 instance. 214 Jones Lane, Smithville can only be possessed by you, or me, or someone else. But concepts can exist in limitless instances. Anyone in our industry with half a brain or, anyone with understanding of invention-based businesses, would know that this would slow down the US innovation economy and give other countries a massive advantage. The US software industry would turn into a bunch of MBAs registering overseas companies and outsourcing their development to the BRICS economies, even further afield into eastern Europe and Africa. The USA is cash squeezed enough as it is without trillions more flowing overseas to pay for foreign cloud computing services.
this line of reasoning is not objectivist. You will necessarily experience dissonance on this subject whomever you are because the fundamentals in objectivism beg to be paid attention to. as well, go back and read this post. these posters are trashing our profession and calling db a fraud. yet, he is to be civil, tolerant, patient. he provided much evidence to no evidence in return. what if he came in and called all software programmers frauds? please understand context. I do not trash your profession not your competence nor your integrity. knock knock. who's there? PROPERTY RIGHTS
What is your preference for timespan of patents? If your answer is "lifetime of creator", then what if the patent is sold?
Ditto for copyrights?
You clearly do not want to, because you are not interested in the truth you are a troll