Possible use for 'software patents'?

Posted 6 Nov 2005 at 22:39 UTC by Omnifarious Share This

I've been thinking about what would happen to software development in the complete absence of patent and copyright protection. It's an interesting thought experiment, and I believe I may have uncovered a case for a form of software patents.

If there were no copyright or patent protection for software, what would happen?

I believe that what would end up happening is something that looks very much like the Windows shareware community today. You would get closed source programs distributed for nominal cost. You would have some features unavailable until you paid money for an activation key of some sort. And those activation keys would have only very limited DRM associated with them since the money collected only justifies a very low barrier, and a higher barrier would also inspire a vibrant market in cracking programs and key exchange.

I suspect larger, more complex programs would end up being developed by specific companies for a specific purpose, and may leak out, but would probably not be actively distributed outside the company. I'm not sure if anybody would ever get around to developing a widely used platform. Hardware manufacturers might get together to create one, but I suspect many of the details of its internal operation would remain secret, or only available on a trade-secret basis. Much like what happens with non-Linux based networking hardware today.

I believe that is something close to the natural free-market state of the software industry. This is an off-the-cuff analysis, and I might be missing something important.

In this scenario, there is no Open Source software. It is somewhat paradoxical that the GPL relies on copyright law in order to force the release of source code.

This leads me to question how you might encourage the release of source code for software. And my mind turned to the means for encouraging people to release detailed plans for mechanical devices and such. Patents.

You grant someone a patent on a piece of software. The patent filer must present the full source code to the software in order to recieve the patent. The patent allows them to keep others from distributing the software on a commercial basis.

So, they exchange some ability to monopolize the distribution of a particular piece of software for the source code to the software. After their patent expires, the source code becomes public. It must be complete, and in the form the programmers originally used to create the software. An average software developer must be able to transform the source code into a working program with a minimal amount of effort, and be able to make modifications with only a little more effort. The patent would have a very limited duration. Anywhere from 1 to a maximum of 5 years depending on the nature and complexity of the software involved.

I believe this actually fits with the original intent of patents and copyrights (to promote the progress of science and the useful arts) by encouraging the release of something truly useful to other practitioners of the art that might otherwise not be released.

I also think there are details to be worked out. For example, it should be explicitly stated within the law that the patent is meant solely for other practitioners of the art, and they are to be considered fully competent in evaluating whether or not the patent applies in a particular situation. And various other changes to reduce or eliminate the need for a specialty class of lawyers in most situations.

What do you all think of this?

Patents != Copyright, posted 7 Nov 2005 at 17:53 UTC by hereticmessiah » (Journeyer)

Your thought experiment is bunk because it eliminates both copyright and patents. There's no irony that the GPL uses copyright to do what it does. Few thinking FOSS developers even have anything against copyright asides from the excessive lengths of the term accorded. The problem here is with patents.

In addition, you're thinking on what a patent is is incorrect. A patent covers a class of objects on which that patent applies. To take the example of books, copyright is where you write a book called "Foo for Dummies" and you have the right to decide how that book gets copied and distributed. A book patent would mean that you and only you would be able to write "for Dummies" books, even if you never exercised your copyright on them. These are two very different things.

There's no need for the kind of regime you're putting forth here as something already exists that fulfills almost the same role: copyright.

I think you have a knee-jerk reaction to the word 'patent', posted 7 Nov 2005 at 19:50 UTC by Omnifarious » (Journeyer)

So, if copyright is fine, then how do you get people to release source code? And don't tell me the GPL. There is a lot of software that isn't covered by the GPL, and the people who write it will never see any reason they should release the source code.

I think copyright is actually largely broken. It is not in the least reasonable to expect to be able to control the copying behavior of the general population at large. It is only possible to control the copying behavior of people engaged in a thoroughly public activity like commerce. Frankly, I do not enjoy living in a world where people still think that copying by individuals can be controlled, and I think a bit motivation for Richard Stallman was realizing that such a world would be an awful place to live.

Copyrights and patents are both trades. In copyright, the trade is the freedom to copy for an encouragement to publishers to find new works to publish an distribute. In patent, the trade is trading the secret to a hidden design that might otherwise be a trade secret or have to be painstakingly reverse engineered in exchange for a very temporary monopoly on the distribution of the device in question.

To me, the latter trade fits the problem of getting people to open up their source code. It also provides a neat solution to the "I provide everything as a web service, so I can basically ignore the GPL." problem.

And, I am well aware that copyrights and patents are not the same thing. But, in some sense, I don't really care. What I'm concerned with is whether or not there is anything useful that congress can do to fulfill the 'promote the progress of science and the useful arts' clause of the constitution. I only use the word 'patent' to describe my idea because I think it's the closest fit.

Then what you're talking about isn't patents, and you shouldn't use that word., posted 7 Nov 2005 at 21:25 UTC by hereticmessiah » (Journeyer)

Nope, no knee-jerk reaction here, unless it's to the misuse of a word. What you have a problem with here isn't copyright, but that software companies treat their source code as a trade secret. This is a different beast altogether.

Yes, trade secret, exactly, posted 7 Nov 2005 at 21:47 UTC by Omnifarious » (Journeyer)

They treat it as a trade secret. The original goal of patents for physical inventions was to convert trade secrets into public knowledge. It was to encourage people and organizations in posession of a trade secret to publish it in exchange for a state sponsored monopoly.

And I think there might be value in doing something along those lines for software. But software has different rules governing distribution or creation than physical things do, and I think the idea needs to be adjusted for those differences.

speaking of patents, posted 7 Nov 2005 at 21:52 UTC by StevenRainwater » (Master)

hereticmessiah said:

To take the example of books, copyright is where you write a book called "Foo for Dummies" and you have the right to decide how that book gets copied and distributed. A book patent would mean that you and only you would be able to write "for Dummies" books

In case anyone missed it, Slashdot had a story recently about the US patent office issuing the first "storyline patent". Ironically, it's patent on a storyline with seemingly obvious "prior art" (Rip Van Winkle). The Slashdot article was a bit inaccurate (suprise!) as the actual press release only said they'd published a patent application - no patent has actually been issued yet. If it is issued, the patent holder is already set up to go into the story patenting business.

And so what's the benefit to those in question?, posted 8 Nov 2005 at 14:09 UTC by hereticmessiah » (Journeyer)

Copyright isn't going to disappear because it's genuinely useful in many circumstances, and that software is somehow a special exception to this isn't going to cause the edifice to be torn down by legislators and parliamentarians around the world.

Anyway, even with patents as they stand, there's many circumstances where companies prefer to keep patentable formulas, devices, &c. trade secrets. Just think of the most famous one of all: 7X, the supposed secret ingredient of Coca Cola. If genuine rather than a myth, it's something that Coca Cola could have patented, but instead chose to keep a trade secret.

You also put forth the idea that trade secrets are somehow a bad thing and that patents were meant to put an end to them. That's incorrect. Firstly, at least in every common law country, there are laws protecting trade secrets. Also, patents, though originally simply a method of giving individuals a state-sponsored monopoly over some enterprise, later became mechanisms for encouraging invention, both by giving an alternative to the use of trade secrets and by encouraging those who, though they might not otherwise have exploited their invention for some reason, and so would not have bothered to reveal it, some carrot to encourage them to do so.

Now, patents were meant to cover classes of inventions: if you patented the rocket, your patent would give you a monopoly over rocketry for a limited time. It wouldn't apply to individual rocket designs: those would be treated as trade secrets. This is how patents have always worked.

I think a closer, yet not quite perfect, analogue of what you're looking for is something like "inventor's certificates", as were used in the Soviet Union. Now, don't be put off by the fact that the idea originated there: even bad regimes have good ideas occasionally. The idea was that when you invented something, you applied for a certificate giving you rights as the inventor. In exchange for this, the invention would become the property of the state and anybody would be able to exploit it. In return, the inventor would get some stipend based on the profits from the invention.

In modern terms, it's like a patent where there patent holder can't stop anybody from exploiting the patented art, but any who do are required to compensate the holder at some fixed rate.

The system was quite successful in science and engineering. The real weakness in the system was with the manufacturing sector, not reasearch and development.

And I think there might be value in doing something along those lines for software. But software has different rules governing distribution or creation than physical things do, and I think the idea needs to be adjusted for those differences.

Only source code is largely valueless by itself, and under the system you prescribe, I really can't see how it would suddenly gain value. Also, 1-5 years is hardly enough time for any reasonable commercial exploitation, except maybe games.

Why source code, and why 1-5 years..., posted 8 Nov 2005 at 18:04 UTC by Omnifarious » (Journeyer)

The goal would be to have source code that could be easily transformed into a working program with widely available tools. So, if you created a whole bunch of tools that used config files or even full turing complete languages to create the final product, those tools would have to be part of the released code too.

I chose that because the life-cycle of the average product in the industry is from 1-5 years. For example, Windows XP is going to be obsoleted by Vista in about 4-5 years. Now, Vista is has large parts of it that are the same as Windows XP, but I don't think that really matters.

Lastly, I don't think trade secrets are necessarily bad. I do think the law around them is a little broken right now, but not horribly so. It needs to be a little easier for a trade secret to escape, but I don't think they should be made impossible to keep. On the other hand, I do think that having a lot of new ideas locked up in trade secrets is ultimately bad for the economy as a whole. Therefore I think encouraging owners of trade secrets to make their secrets public is a good idea.

Maybe the idea you have is a better one. It accomplishes the same goal, and is perhaps less easily abused. Setting the price would be hard though.

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