Software Patents: Copyright Law Expansion And Lessig’s Software Patent Non Sequitur (Part 5)

Lessig argues convincingly for limiting the extension of copyright terms but argues unconvincingly against software patents.

Software can be protected by copyrights and patents. As a result, discussions of software patent issues invariably lead to discussions of software copyright issues. And vice versa.

Copyright law is certainly interesting. For example, in the U.S., one can rent movies on DVDs, movies with music on DVDs, but not music on CDs. The copyright laws are driven by corporations with lobbyists. But if you think the Copyright Act is bad, I invite you to take a long look at the Tax Code.

Via bit.ch (http://bit.ch/topic-8.php), I found a post about a speech given by Stanford Law School Professor Lawrence Lessig (http://cyberlaw.stanford.edu/lessig/blog/) at the 2002 O’Reilly Open Source Convention (OSCON) (http://conferences.oreillynet.com/os2002/). A transcript of the speech is also available (http://www.oreillynet.com/pub/a/policy/2002/08/15/lessig.html).

This is an excellent presentation on how copyrights have been repeatedly extended throughout history. But if copyright term extensions are bad, it does not logically follow that software patents are bad.

Lessig attributes the following quote to Microsoft founder Bill Gates.

“If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete stand-still today. The solution … is patent as much as we can…. A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.”

I would add that smart companies realize that they should not eliminate all of their competition, that competition validates a marketplace, and that sometimes (such as Polaroid’s patent “victory” over Kodak in the instant camera market) eliminating the competition eliminates the market. I would also add that smart patent licensing can lead to the widespread adoption of a particular technology (such as Dolby’s noise-reduction technology).

Regarding software patents, Lessig said that “the [software patent] field has been dominated by apologists for the status quo, apologists who say ‘oh, we’ve always patented everything, therefore we should continue to patent this,’ people like Greg Aharonian who goes around and says, ‘see, every single patent out there is idiotic, but, turns out the patent system is wonderful and we should never reform it at all.'”

Many copyright commentators enjoy talking about patent law but have no background in either patent law or technology. Lessig is certainly a thought leader on copyright and an entertaining speaker, but he lacks credibility when he starts talking about the patent system. Also, his criticism of Greg Aharonian is misguided and his interpretation of Aharonian views is inaccurate.

Aharonian runs a company that helps defeat bad patents (http://www.bustpatents.com/). Aharonian has been a tireless advocate for patent quality and patent reform. He has also been an outspoken critic of Lessig, which perhaps explains (but does not justify) Lessig’s remark at OSCON. Aharonian has stated, for example, that “the patent commentary in Lessig’s [The Future of Ideas] book should be ignored” because Lessig provides little reliable statistical data to substantiate the claim that strong patent and copyright laws are and will be stifling innovation.

In short, Lessig argues convincingly against the extension of copyright terms but argues unconvincingly against software patents.

There are many laws that need reforming, but unless the citizens of the U.S. demand change by 1) voting for politicians who will change existing laws and 2) supporting organizations who lobby for change, the status quo will continue. In other words, I believe that the Copyright Act is the way it is because the citizens the the United States like it that way – or at least don’t care enough to cause it to be changed. Other conclusions do not logically follow.

Related Posts

  1. Software Patents: Good Or Evil? (Part 1) (6/15/2003)
    This week, I am speaking at the fourth annual Law and Technology Conference at the Technology Law Center of the University of Maine School of Law. I am taking a non-standard approach to this presentation. Rather than preparing PowerPoint slides (or the like), I will be posting a series of notes on my website.
  2. Software Patents: Principled Dialog (Part 2) (6/15/2003)
    Whatever your position on software patents, or on patents in general, one thing is clear. Principled arguments are more interesting than unprincipled arguments.
  3. Software Patents: Examples Of Unprincipled Arguments (Part 3) (6/15/2003)
    Many educated people are opposed to software patents, but few make principled arguments to support their positions.
  4. Software Patents: Examples Of Principled Arguments (Part 4) (6/15/2003)
    The two most fascinating principles on which software patent proponents base their arguments are that 1) open source software is better than proprietary software and 2) free software is better than open source software.
  5. Software Patents: Copyright Law Expansion And Lessig’s Software Patent Non Sequitur (Part 5) (6/15/2003)
    Lessig argues convincingly for limiting the extension of copyright terms but argues unconvincingly against software patents.
  6. Software Patents: IETF Standards (Part 6) (6/15/2003)
    For now, the IETF has not changed its policy about using patented technologies in the standards process. The tension between the IETF and the open source community will likely increase as open source software continues to grow in popularity.
  7. Software Patents: W3C Standards (Part 7) (6/16/2003)
    The open source community has generally viewed the W3C’s decision on patents in standards as a victory.
  8. Software Patents: Final HERTS (Hypotheticals, Examples, Rants, Thoughts, And Stats) (Part 8) (6/16/2003)
    Using open source software is a bit like reading Entertainment Weekly. Lots of people do it but few admit it. Plus other observations that didn’t fit anywhere else.
  9. Software Patents Epilogue (7/16/2003)
    The 2003 Law and Technology Conference at the Technology Law Center of the University of Maine School of Law was the most fun I’ve had at a conference in years.

Leave a Reply

Your email address will not be published. Required fields are marked *