Patently Wrong

Two recent articles have put software patents back on my mind. The first is Paul Graham’s slightly embarassing attempt to justify himself. Paul, I don’t mind that there are patents in your name: it’s something that happens largely outside of your control when you work for a big company. But trying to excuse it with “well, patents aren’t that bad really… actually, they can be good!” is just… well, kinda painful, in the same way that The Office is.

Several issues are addressed in that article, and I do agree with quite a few of the points raised. Unfortunately, some of the others are worryingly wrong.

One thing to get out of the way first: Patent trolls. Paul Graham makes a sound point here — I think we can all agree they are Evil And Wrong.

(Well, all except from a few amoral, greedy, bottom-feeding, IP lawyers. But they only count as human on a DNA technicality, and certainly don’t count as members in good standing of civil society.)

We Must Not Have A Patent Gap, Mr President!

He also brings up the “Mutual Assured Destruction” theory of patent registration. This states that, like a nuclear deterrent, you need an arsenal of patents, squatting dark and cold in your Minuteman Patent Silos. You swear blind you’ll Never Strike First, But You Need Them There To Deter Others From Doing It.

Which doesn’t seem entirely unreasonable; however, this Rand Institute Cold War Game Theory-style argument has three fatal flaws in it. The first is that M.A.D. is all very well if you’re a superpower, but if you’re Sweden or something, you might feel kinda nervous about the whole deal. These arsenals act as a kind of “big boy’s club” that potentially locks out everyone else, putting them at a negotiating disadvantage and biasing towards the huge, lumbering superpowers.

Second, everyone’s sitting there bricking it over the possibility that some trigger-happy nut-job might get into power and decide to Push The Button. I’m getting SCO flashbacks here, but maybe that’s just me.

And third, you might argue a nuclear deterrent is necessary because “the other side has them”, but patents are purely a legal construct. Some people like to say, “if guns are outlawed, only outlaws will have guns.” I dunno, but whether that’s true or not is irrelevant, because if patents are outlawed, the outlaws will have worthless pieces of paper. If we, as a society, decide not to allow sofware patents, the problem just goes away, and we don’t have to worry about a scary man in a hoodie jumping out of a dark alley with a loaded patent on the way home from the restaurant.

It’ll Never Happen To You

The other main plank of Paul’s argument is that it doesn’t matter — no-one will actually sue you for infringing a patent. This is clearly untrue, with at least two massively high-profile patent cases MIRVing on reentry at the moment: Eolas and RIM.

OK, technically his argument is that it’s just unlikely to happen. Perhaps it isn’t that likely that you will actually get sued. But if you do, it’s a humungous hassle, potentially devastating, and it clearly has a chilling effect. And this effect can chill both developers, and potential investors. Due dilligence includes checking for potential IP issues.

Headology

Having tried to show that, actually, patents won’t really be a problem for you, Paul then tries to take it one step further and actually claim that they’re beneficial — not in the way they’re intended, but due to the psychological effect they have on big companies:

  • that patents act as an excuse to allow big companies to admit they can’t make stuff themselves (and thus buy it from smaller ones), and,
  • that without patents, big companies would be even more secretive to compensate.

I certainly agree that Extreme Secrecy Paranoia is damaging to companies, as I’ve seen this first-hand. And by secrecy, I’m talking full-on CIA-style here: Frosted windows, thumbprint scanners on the doors, no notepads to be taken into secure areas, air-gap data transfer policy, the works. At a company that holds thousands of patents. Holding patents clearly doesn’t cause companies to unclench one little bit.

And if a lack of patents were to cause them to squeeze even tighter? Their own damn fault. The smart ones will not worry about it, and prosper.

And So We Meet Again

And so we come to the other article that crossed my desk: The European Union is, once again, considering introducing software patents.

Why is this happening? As far as I can tell, there are three main groups pushing for software patents:

  • The US likes to push the EU through diplomatic channels to “harmonise” with the US’ insane IP regime. This is how we have the EUCD — our equivalent of the DMCA — and why we keep extending copyright. If this is all acronym-soup to you, don’t worry, the point is just that every time the US enacts a dumb law at the behest of corporate interests that donate large sums of money to politicians, it pushes the EU to do likewise so that we labour under the same disadvantages they impose on their own people.
  • Those same corporations also apply lobbying pressure directly to the EU.
  • The EU has wannabe patent trolls too, and they’ll push like crazy for a legal environment that allows them to saunter up to entrepreneurs and say, “Lovely business you’ve got here… shame if something were to… happen to it…”

A Pox On… One Of Your Houses

The thing is, the European Parliament has roundly rejected software patents. But, rather like the House of Commons and the House of Lords in the UK, or the Senate and Congress in the US, there are multiple governing bodies in the EU, and the other one, the European Commission, keeps pushing hard for them.

Members of the European Parliament are elected by their constituents. Members of the European Commission are political appointees. (It’s also been well over a decade since the Court of Auditors agreed to actually sign off on the European Commission’s accounts.)

Oh, and for bonus points, previous drafts of their proposed directives were found to have actually been written by the BSA, the alliance of huge software corporations.

Ticking Clock

They are, at present, inviting comments on the patent proposals. Now, the proposals purport to be on the subject of the “Community Patent” — effectively, harmonisation of patent law across the EU — but, as we’ve seen, “harmonisation” is typically a euphemism for “power grab”. You can read read an explanation of how this works from the FFII. The gist, as I understand it (the proposals themselves are pretty tortuous) is that patents would not receive independent review: Only the EPO, which issued the patents in the first place, would review patents during litigation, instead of the courts.

(Fun fact! The EU does not allow software patents. The EPO, however, has been issuing (invalid) software patents for years. Pop quiz! What do you think is going to happen next?)

You have until 12 April 2006 to submit comments on the latest proposals. That’s one week, as I write this. Not long. But I’d appreciate it if you did.