Based on the preceeding discussion, it is clear that while both patents and copyrights protect the creators rights, they are quite different. Software copyrights apply to the redistribution, resale, modification of software in source or binary form as-is. Software patents apply to "innovative" processes demonstrated by a particular application or piece of software.
While the both sides present compeling arguments, I'd like to take one step back and review the basis of intellectual property protection itself. It's fairly obvious why intellectual property should be protected. Without such legal systems in place, there are no monetary incentives for would-be IP creators (software developers, musicians, writers) to do any work or to develop anything new. As we (still) live in a predominantly capitalist society, removing these incentives would stifle artistic and technological development. The foundation of intellectual proerty right enforcement is based on the principle that these are needed in order to PROMOTE AND ENHANCE artisitc and technological development. So the question is simple, from a social perspective, do software patents promote technological advance? In some industries, it makes sense for patents to be applied -- pharmaceuticals come to mind -- as the initial inputs costs are genuinely staggering and the fields requires significant PRIMARY research costs. Here, allowing monopoly rights seem to make sense. With respect to software patents however, the problem is that software operates within a set of relatively well-defined parameters -- the parameters of the hardware platform (cpu registers and the like) and the mathematics of algorithms. These parameters are quite well known so the "building-a-better-moustrap" analogy may not really apply. With physical products, I can use an infinte set of input materials (wood, metal, plastic) in limitless configurations (mechanical, electric, chemical, etc) to achieve the same end -- to catch a mouse. Hence, the plausibility of developing something genuienely "unique." In software, the only building blocks available are ideas expressed in mathematical form (logic and algorithms) and the requirements and conditionalities of hardware. As such, it is highly unlikely that two independent developers (of equal skill and predisposition) working on the same problem set will develop two COMPLETELY different and GENUINELY UNIQUE approaches to the problem at hand. Their indivual implementations may be different (using a different language for example) but many of the underlying processes or steps will likely be the same. This is also the logic of why patents cannot be applied to forms of artistic expression -- books, music and art -- because the medium defines (or at least significantly shapes) the method of execution (i.e. the patent-able process). And here lies the rub. Software patents put into question the validity of software and applications that were developed COMPLETELY INDEPENDENTLY of each other. If two develpers were simultaneously able to develop the same "patent-able" piece of software, working completely independently of each other, should one be given monopoly rights of 20 years just because one was able to file for a patent one week earlier than the other? Or should the two pieces of software battle it out in the market place and let the public decide which is a better product or innovation? Copyright manages my rights with respect to something I created and impinges on other's rights to copy, redistribute and modify a given PIECE OF WORK. In fact, copyright (law) is what enables the GPL to be so powerful. The problem is that patents explicitly impinge on other people rights, not on a given price of work, but rahter to create or act upon a set of ideas -- even if these sets of ideas (or processes) were developed independently. Smaller firms and independent developers will be at a disadvantage with software patents in place. The creator of intellectual property automatically enjoys the rights of copyright upon the creation of the said work. Patents, on the other hand, have to be applied for and must under go a substantial legal process to obtain -- costs that smaller development shops may not be able to maintain. It is important for smaller firms to be able to compete toe-to-toe with larger firms. Small firms can innovate and competition leads to lower prices. Lower prices lead to accessibility and more widespread adoption. Ultimately, technology can only be socially beneficial if it garners widespread acceptance. Intellectual property rights have their place in promoting technological advance. But excessive proprietary treatment of intellectual property such as software patents and the extensions of copyrights enshrined in the digital millenium copyright act (DCMA) serve little social benefit. -- Philippine Linux Users' Group (PLUG) Mailing List plug@lists.q-linux.com (#PLUG @ irc.free.net.ph) Official Website: http://plug.linux.org.ph Searchable Archives: http://marc.free.net.ph . To leave, go to http://lists.q-linux.com/mailman/listinfo/plug . Are you a Linux newbie? To join the newbie list, go to http://lists.q-linux.com/mailman/listinfo/ph-linux-newbie
