Software Patents Have Got to Go | Hacker News Reader

Software Patents Have Got to Go

pcmag.com

103 pointsbakbak67 comments

Not just software patents, but intellectual "property" in general.

Boldrin & Levine: "Against Intellectual Monopoly" http://www.dklevine.com/general/intellectual/against.htm

34 years after Bill Gates' open letter to the "pirates" and decades of heavy propaganda and legal actions from the BSA, RIAA, etc, the general public still isn't convinced that copying bits is wrong. If after decades trying you can't change people minds, it must be that you're wrong and they're right. Intellectual Property must die.

Just because the public wants something doesn't make it right.

The reality is that this is exactly how we as a species define "right": we do what we want to do, and eventually we invent justifications and frameworks to make what we already do the "right" thing.

Eventually, when enough people don't want to do something anymore, that becomes "wrong."

I'm not saying this is how it should rightly be, I'm just saying this is how it is.

I bet you eat animals that have been tortured and killed in factory farms, and you have a bunch of a really great justifications for that. QED.

>I bet you eat animals that have been tortured and killed in factory farms, and you have a bunch of a really great justifications for that. QED.

As a vegetarian I feel that bringing out this argument (implying that a particular person is hypocritical -- and yes, I understand the societally-approved point), in response to a discussion on copyright patents, is below the standard of discussion I expect from HN. In general this discussion seems to include a lot of "no it isn't" / "yes it is" type bickering without much substance, and to be honest I blame the original article, which was content-free. Up above we have people arguing for the abolition of all intellectual property, and others claiming that mob rule is the basis for democracy. I don't see why the issue is such a binary one. Clearly the patent system needs reform. It's not at all clear that it needs to disappear entirely.

Will of the people, does that ring any bell? I'm pretty much sure that's what "democracy" means.

Notice that I don't pretend that the public opinion can't or shouldn't change. It did in the past, about slavery, colonialism, women rights, and many other matters. However I insist on the fact that after several decades of propaganda, legal battles and laws, the public still is unconvinced.

¨...a majority are permitted, and for a long period continue, to rule is not because they are most likely to be in the right, nor because this seems fairest to the minority, but because they are physically the strongest¨ -Thoreau, Civil Disobedience

And the South would still have slavery.

You need to ask the supposed victims of said crime, not the beneficiaries of it.

right, and the victim has generally been labels/publishers and not producers. producers, people who produce wealth. we're witnessing the death of a certain class of middlemen who are no longer necessary, not the death of the production of art.

You don't think getting rid of all IP would hurt producers?

It's unclear to me how one would make any money with movies and books when anyone can replace my name and give it away as theirs.

> when anyone can replace my name and give it away as theirs.

Nobody in their right mind ever pretended this is the way to go. However patents, DRMs and artificial limitations on the diffusion of digital goods do way more harm than good.

Sorry, someone had mentioned getting rid of all IP protection, and I mixed it up with the actual article.

I have no problem with ending patents... across the board. Although I'd like to see a change in copyright law too. One that works better for compa ies and consumers.

because that would be fraud.

Is it fraud if there's no intellectual property of any kind? If there's no intellectual property can't I rearrange the letters in any way I choose?

I can see how you would think that, since owning your reputation could be considered a form of intellectual property. but the two areas of law are separate.

author's rights / moral rights can subsist if copyright goes...

It's called a creative commons attribution license. Personally if we operated under the assumption of "once it's released, it's gonna get copied" then entertainment would be released in a completely different fashion.

The human history have always had some goods and services that everyone needs but no one wants to personally pay for e.g. history, archeology, free community park, national defense etc. How are these services supported? Either through patronage or government funding. I guess at some point in future we'll have to give music and movies the similar treatment.

http://mises.org/daily/1356

note that the other problems are microscopic next to national defense.

The problem with this attitude is that absolutely everyone, including the RIAA lawyers and Microsoft programmers, "pirated" and "stole" music, software and other digital "goods" at some point. I'd like to see someone who can rightfully pretend to be unilaterally a "victim". This is a fiction, like "digital piracy".

Unilateral victimhood seems like a high bar, unless your name is Jesus.

You forgot RMS.

I think that some degree of copyright protection for a person's intellectual works is fair and probably necessary within the current socio-economic system. A person should definitely have the right to profit from their hard work. However I don't think it's fair that an author can continue to receive revenue from a work 50 years after authoring it. It seems even less fair that the investors in large corporations like Microsoft can continue to profit from the intellectual work of that company's employees indefinitely.

It seems to me that a fair solution would be to maintain copyright but limit copyright protection to say 5 years. That should be enough for authors to obtain a reasonable revenue from their works while greatly improving the common good by eliminating artificial scarcity after a fairly short period of time.

Keep in mind that copyright is also a form of intellectual property. Do you really want it to die as well?

Yes.

Copyright can be simulated using purely private contracts (basically requiring everyone who gets the content to sign an NDA, which may be impractical, but possible). This legitimises copyright somewhat IMO.

Also, the damage from copyright is probably much smaller because it is very unlikely that you independently come up with the same content as somebody else, whereas with patents that happens all the time.

not just simulated, but it's being actively extended in that way. the recent Blizzard v MDY touches on it, there's a SABIP report on contracts and copyright... lots of stuff out there.

but it's not quite the same. By way of example, for breach of contract, the remedies are far less attractive than the US remedy for copyright infringement (statutory damages).

US patent law (as well as copyright law) derives from Article I section 8 of the Constitution which grants Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

The question is do patents actually promote the progress of science and technology ? I suspect that they do not because while they create additional monetary incentives to pursue innovation at the same time they restrict the free flow of ideas which is the driving force behind scientific and technical progress.

The free exchange and use of information is probably the source of the exponential progress in "information technologies" that Ray Kurzweil has discovered. It seems likely that impediments to the exchange and use of information, such as patents, can only reduce the rate of exponential growth.

Perhaps if patents had never existed our technology would be far more advanced than it currently is.

If it were ever possible to prove conclusively that patents impede rather than promote progress, they would become unconstitutional in the US.

Agreed, however there is something to be said about giving incentives to the little guy. Basically what entrepreneurs who are just starting out think NDAs should do, but better.

Say you come up with a great new idea in software. And you want to make an agreement with someone to implement this idea. Without patents, they can have "their uncle's company in China" to do the idea (think CrunchPad), rename it to avoid any trademark issues, and screw you. How would you protect against this? This issue faces almost every inventor of an idea, as they will have to make business agreements with someone. Thus, although you would be encouraging free flow of information within the tree, you would be cutting off a large source of it -- individual inventors.

Patents won't be going away because it's hard to distinguish between the above example, and a patent troll.

Yes, I've often heard this argument.

Personally, speaking as a "little guy' who is interested in advancing technology and making a good living doing it, I am far more worried that some corporation will be able to claim patent "protection" over my ideas. This seems far more probable to me than the inverse situation of someone else independently discovering my invention and beating me in the market. Also even if that happened I'd much rather compete in the market than in a court room.

As for the specific case you mention, I think, especially in software, that it's becoming far easier for an individual inventor to take his invention to market rather than needing to sell it to a large corporation. Also this argument seems largely based on the notion, which I think is most often incorrect, that most value lies in a simple idea rather than in the execution of that idea. In other words that you have some idea that can be stated in a few English sentences that has tremendous value and that no one else has thought of. You only need divulge that idea and anyone on the planet will be able to beat you in the market. Such ideas, if they exist at all, are exceedingly rare, maybe once in a generation occurrences. All recent examples of highly successful innovation: Microsoft, Google, Facebook relied far more on the quality of execution - the construction of solutions from many small ideas - than on one overarching genius discovery. And it is exactly this form of value creation which patents impede.

Well, it's hard to distinguish where to draw the line between a good faith attempt to execute an idea -- failing because a competitor outright copied it in 2 days, and patent trolling.

That's why unless we figure out how to distinguish this effectively, either patents get abolished in software or they persist.

Personally I did invent something that's relatively easy to copy. How would a big company ever agree to buy what I made when they can just copy it?

Let's look at your first example, the attempt doesn't need to fail just because someone copied it in 2 days. Let's say I come up with a great new idea for a smartphone app. It's actually an easy idea to implement, but having the idea in the first place wasn't necessarily obvious. Once I launch my app other developers can copy it quite easily. But that doesn't mean my market share goes to zero. I'll still have a first to market advantage and I can compete on features and quality with my competitors. I should still be able to make a reasonable income from my app, an income that's related to how well I've implemented and marketed it. It's true I won't get much of a wind fall for having had the initial flash of inspiration, but that seems pretty fair to me. Anyone could have had that idea, I was just lucky enough to have had it first, and I probably didn't do a large amount of actual work to come up with it, so why should I have a monopoly on it ?

As for your second example, where you're trying to sell your idea to a company, I wonder if you aren't overestimating the amount of protection the patent will give you ? Are you considering the asymmetry in legal resources between yourself and the company ? There are many grounds for finding software patents invalid and if the idea is valuable enough, the corporation may well litigate you all the way to the Supreme Court. Do you have the resources for that ?

In the first example, who cares that you are able to get 2-3 thousand users, eventually facebook comes out with it and launches to 500 million users simultaneously, you are unable to advance, and your 2-3k eventually go away.

How do you think patents "restrict the free flow of ideas?"

A patent must publicize what is being claimed: you are given a explanation of the design or process. You just can't make it and sell it. However, by knowing someone's design, even when patented, it can inspire someone else to build something even better.

Well they clearly restrict the free use of ideas. An idea that I can't use is of limited interest to me.

Have you ever read a software patent ? The ones I have seen have been written in a very strange way (ie use of non-standard terminology for technical concepts) which seems aimed at obscuring the nature of the ideas being patented rather than clarifying them. If patent descriptions were really intended to convey useful technical information they would read more like journal articles rather than some strange dialect of American legalese.

I'm sure that some innovation occurs through efforts to work around existing patents however I doubt that effect comes close to matching their effect of preventing ideas, even if independently discovered, from being incorporated into new technical solutions.

As for the notion that people are going to read 20 year old expired patents for their ideas that seems pretty unlikely to me given the pace of technological development.

This isn't anything new. Pretty much anyone who knows anything about software is against software patents except for a few with a vested interest.

The patent system was originally created to protect investment and foster innovation by providing exclusivity but requiring disclosure to further research by others and of course there is a time limit.

The problem is that ideas (which is what software patents and business models come down to) have next to no cost (unlike, say, new drugs that have substantial R&D costs, trials, etc).

Lawyers have gotten very good at perverting this system [1]. I remember reading about Intel's system bus (I think in relation to Nvidia producing chipsets without a license). Basically parts of the system were patented, some copyrighted and the rest was a trade secret. Combined it meant Intel basically didn't have to disclose anything but could still go after those who reverse engineer.

Once I used to support pharma-patents but I'm changing my mind on even that. I believe the high cost of health care in the US is in large part to the protections and monopolies suppliers have. The counterargument is that many of these things wouldn't exist without these protections but I think the pendulum has swung too far.

Something like two-thirds of the budget for a new drug goes on marketing [2].

Worse, we're starting to see copyright trolls [3] who are basically producing reams of crap in the hopes that someone inadvertently infringes on that so they can be sued.

So IP is horribly broken, not just for software.

[1]: http://en.wikipedia.org/wiki/Software_patent#Overlap_with_co...

[2]: http://en.wikipedia.org/wiki/Pharmaceutical_marketing

[3]: http://en.wikipedia.org/wiki/Copyright_troll

Thank you!

I was just writing about this: http://news.ycombinator.com/item?id=2039527

As a biochemist, I can assure you that if pharma-patents went away, drug-development would disappear overnight. One can argue over the specifics, but some form of IP protection is necessary in that arena.

My understanding of the traditional drug development model is basically that companies spend millions of dollars testing large numbers of substances in vitro, then in animals then finally in human trials to find a very small number of drugs that work. Once such a drug has been found and approved by the FDA it is fairly trivial for a competitor to reproduce, which in the absence of patents, would allow the competitor to essentially appropriate all the R&D the initial developer did.

This development model is extremely different from that seen in software and related technologies where many small ideas are combined to form compelling technological solutions. I suspect this difference in development models is the main reason for the much slower (linear) progress seen in medicine compared to information technologies (exponential). I also suspect that as our understanding of biological systems improves, the pharmaceutical industry will evolve towards a more information based development model.

In any case, it seems to me that in the present, IP policy needs to accept that different industries have different development models and that a one size fits all IP policy is not a good solution.

The instant I saw it was John Dvorak I closed the tab.

Don't let your hatred blind you.

I can understand this reaction, but even a crazy pundit can be right twice a day.

Dvorak doesn't deserve the page hit even if he's right. His trolling methodology fills the world with uninformed hyperbole, which should not be rewarded even if it's occasionally right.

But is it worth the time and trouble of figuring out whether this time it is worth reading? I have a whole list of websites and people mounted on the wall over my monitor who have been so outrageously incompetent in the past that I avoid reading them. If they have shown such a low quality of accuracy on things I do know about, there is no way I can trust them on things I don't already know, so there is no point to reading them. (Note I only do this for actual facts that were flagrantly wrong, I read a lot of opinions that I disagree with.)

> Basically, Allen got an omnibus patent that covers all these characteristics

No. He didn't. And regardless of whether software patents need to go, ignorant media coverage certainly needs to go.

Most people, including myself, cannot actually read patents. Being told that the summary is irrelevant does not help at all. What are we supposed to do, ignore the patent because we don't understand it?

Rabble rabble rabble. I hate this attitude: I don't understand software patents, and I'm not going to take the time to learn about them, therefore they need to go.

If your post had been informational rather than insulting, he probably would have taken the time to read it and learn.

If you're a programmer, you can read software patents.

If you're a mechanical engineer, you can read mechanical patents,

If you're a farmer, you can read farming patents.

See how that works? The language is dense, and you must read carefully, but the patents I have actually read are not particularly difficult to understand.

> If you're a programmer, you can read software patents.

Here I can bring in a different definition of "can". I could if I wanted browse different software patents, but that just puts me or my company in more legal trouble especially if sometime later I happen to develop something similar enough to a patent I've previously read that I get sued over it. It's not a good idea to just read patents blindly if you have any interest in building stuff that might get popular.

Though I suppose it's probably safe to read the Linked List patent, which is one of the clearest and silliest I've ever seen: http://www.google.com/patents?id=Szh4AAAAEBAJ&printsec=a...

You really are defensive of this whole Balmer thing. Do you have a vested interest in software patents like this or something?

(I was talking to you yesterday about "understanding the world around me")

No, I don't. I just get annoyed at all the misinformation that gets repeated about patents in general and software patents specifically.

The discourse around HN is generally of a pretty high level, and it's disappointing to see people just blindly accepting the party line: software patents bad, I don't know how to read a patent and that's ok, and anyone who disagrees is just stifling innovation.

>The discourse around HN is generally of a pretty high level

Yes, I agree. The people here are generally very intelligent.

>it's disappointing to see people just blindly accepting the party line: software patents bad

...Have you considered that they've applied this intelligence to the topic? They've all come to the same conclusion because it is the most logical one? I wouldn't be so quick to jump to "everybody is stupid because they don't agree with me" on this. Maybe you're the one who is wrong about it.

Well, that may be. But almost all of the posts you see around here decrying them are just steeped in ignorance. Titles like "Microsoft has patented <whatever the title of the patent is>. Software patents have to go." When the reality is that they have merely applied for a patent (not gotten one granted), and it's actually something really narrow if you read the claims.

Stuff like that does not fill me with humility and make me think, hey, maybe these folks are right and I'm the one who doesn't know what he's talking about. Because I do know what I'm talking about. There are defensible arguments for why software patents may not be a good thing... but you don't see them here. You don't often see anything well-reasoned, just a bunch of groupthink.

>Because I do know what I'm talking about.

What makes you more qualified to comment on them than anybody else? Do you work in patent law?

If so, how does that qualify you to speak to their implications in the software world (since that is where people have a problem with them; not the wording, or the format, or the location of the building, just the effect on the community).

> Do you work in patent law?

Yes. As for the effect on the community... well, are you just talking about the way that patents make software developers feel? Because obviously developers would know more about that than I do. But it's also not a particularly relevant question--patents are what they are, and the way they make you feel doesn't really matter.

>are you just talking about the way that patents make software developers feel?

No, I (and I think I speak for the majority of people against overly-broad software patents) am against the effects of those patents.

>the way they make you feel doesn't really matter.

This is absolutely untrue. People being upset about this stuff is how it gets changed.

Well, maybe so. But I stand by my disappointment at the lack of knowledge about patents around here. We don't understand patents, but we're mad as hell about them!

It's depressing to see a respected and influential software industry icon resorting to patent trolling like this. I expect it from lawyers and corporate-raider types, but was surprised to see Paul Allen doing it.

To cherry pick a quote from Dvorak's article: Paul Allen says he has a patent for a "Browser for Use in Navigating a Body of Information...".

On the other hand, corporations love a monopoly, and I guess Paul Allen wants to be involved in another one.

How likely is Paul Allen doing this as an attempt to weaken software patents? MS is trying the SCOTUS in an effort to make it more difficult to assert claims. Wonder if this might be part of the same strategic play. Doubtful, I know.

Very unlikely. He targeted everyone but Gates. His attack is legitimate.

However Allen can feel just, I guess, given that he has dedicated most his wealth to charity after he dies. So he's essentially playing Robin Hood.

I flagged this since we don't need a new one of these articles every day...

Now that's what I'm talking about!

Patents were originally intended to encourage investors in a time when bringing a product to market could take years.

In the software industry, that assumption is, to put it mildly, totally off. Therefore, in the software industry, granting someone a 17 year monopoly on an idea just encourages another, destructive type of strategy that hurts the entire industry: PATENT TROLLING.

Seriously, it is a legal strategy to describe something to the government, wait a few years and then go after the people who actually BUILT IT (even if they came up with it independently, as long as they can't prove they came up with it before you described it in a patent application).

That's BULL CRAP. You didn't do anything except write some paper. If you're good at it, you don't even need a lawyer. And you get to collect money from the hard work of others.

On the other hand, I feel that if you DID write a patent, AND you tried to make it work, AND you are succeeding, you SHOULD be able to prevent your competitors from just copying what you did. But not for 17 years. For two years at most!

It is in this latter sense that the patent system is great. I'd get a provisional patent over an NDA anyday. Because it's more legally enforceable. Say a company meets with me and I tell them the idea. First of all I don't have to require them to sign any NDA. Secondly, suppose they say, "nice idea, we are going to do it ourselves". I can tell them, "I have a provisional patent, and I will sue your ass in 2 years." Or I can tell them NOTHING, go ahead and convert it to a real patent (probably $5k out of my pocket) and go sue them 2 years later. Not 17 years later.

This, I don't mind. They wanted to screw me by stealing my idea, they got burned. This will encourage companies to NOT screw individual investors and actually decide if they want to wait 3 years before making this, or work with the inventor.

With NDAs, there is no way to prove anything. I spoke to Bobby, and they signed an NDA. Then, Charlie Inc. comes out with my product. I didn't make Charlie, Inc. sign anything, and Bobby doesn't have the $5 million dollars to pay me, and I can't prove he told anything to Charlie, Inc. OOPS.

That's what software patents should protect against. That's it. They currently do, but we don't need 17 years of that kind of protection!

Software Patents should be allowed, however the rules on them need to be heavily modified so that the real spirit of the patent can reward resourceful hard working innovators.

Patents were meant to protect programmer, however since programmers tend to work for big businesses and the big businesses absorb all the rights to the code, the software patent is only protecting businesses. I propose a change.

Software patents should have timeouts that increase and decrease depending on the amount of genuine innovative breakthrough contained in the code. If I make a new website that does something people like that never has been done before, then I get so many cents for anyone else using it for so many weeks (something like this would need to be strictly enforced).

Now suppose some programmer created a new bit of software that takes Human DNA as input and outputs a list of instructions on how to reverse aging on that version of the human genome. In this case the software patent would be Longer, with more of a payoff for others who copied it and used it inside the time frame.

Software Patenting isn't evil, it was meant to protect US, the programmers, it is just a completely broken system so that it isn't helping at all.

Maybe they were meant to protect the inventor. But if they cause more harm than benefit, that is no excuse to keep them.