Darkness Visible: Making Patent Absurdity Patent


Regular readers of this blog may have noticed that I write a lot about software patents. The reason is simple: they represent probably the greatest single threat to free software, far beyond that of any individual company.

If software patents are invoked more widely, or – even worse – unequivocally accepted in Europe, then free software will be in serious trouble (so will traditional software, but at least the companies involved will be able to pay for lawyers, unlike most free software projects.) This makes fighting software patents one of the key tasks for the free software community.

Fortunately, there is a growing body of evidence that patents in general are based on a false premise: that giving someone a monopoly on an invention increases the overall innovation, and hence benefit to society. For example, just recently this paper by Eric von Hippel and Carliss Baldwin – two highly-respected scholars – came to the following important conclusion:

from the time of the Enlightenment, many have held the view that providing inventors with incentives in the form of property rights to their “writings and discoveries” would induce them to invest in the creation of useful new ideas, i.e., innovations. This theory was expressed in the U.S. Constitution, which sanctioned the creation of intellectual property: “[Congress shall have 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.” Abraham Lincoln, himself the holder of a patent, approved: “The patent system ... added the fuel of interest to the fire of genius, in the discovery and production of new and useful things.” (Lincoln 1858).

Of course, it was also known that grants of intellectual property rights would create undesirable monopolies. Producers create deadweight losses when they exploit intellectual property rights to reap monopoly profits and spend money to protect or extend their monopoly positions. Indeed while a system of intellectual property rights was enshrined in the U.S. Constitution, patent systems were extremely controversial in Europe during the second half of the 19th century. (Machlup and Penrose, 1950; Penrose, 1951; MacLeod, 2007.)

The work in this paper and that of many others, suggests that this traditionally-struck ‘devil’s bargain’ may not be beneficial. First, there is increasing evidence that intellectual property protection does not increase innovation. As we saw in section 2.2, studies carried out over 40 years do not find that firm managers are inclined to increase their innovation investments due to the availability of patent grant protections. There are also many examples in which strong intellectual property rights may have impeded subsequent progress (Dosi, Marengo and Pasquali, 2006; Merges and Nelson, 1994).

Indeed, recent empirical work has actually shown a negative relationship between patenting and subsequent progress in both biotechnology (Murray and Stern 2007) and software (Bessen and Meurer 2008). Second, the ascendent user and open collaborative innovation models that we have discussed in this paper mean that alternatives that are open by participants’ free choice – and to the economic benefit of those participants – are now ascendent alternatives to the traditional, closed producer innovation model. And openness, as we noted above, increases social welfare, other things equal.

Putting this in context:

We conclude by observing again that we believe we are in the midst of a major paradigm shift: technological trends are causing a change in the way innovation gets done in advanced market economies. As design and communication costs exogenously decline, single user and open collaborative innovation models will be viable for a steadily wider range of design. They will present an increasing challenge to the traditional paradigm of producer-based design – but, when open, they are good for social welfare and should be encouraged.

What that boils down to is that the Internet makes collaboration so easy and efficient that the benefits of sharing knowledge openly now outweigh any economic or social advantages that traditional intellectual monopolies like patents based on hoarding knowledge may once have had.

The case against software patents is even stronger than against general patents, because software consists of algorithms, which are simply mathematics, and all patenting regimes accept that pure knowledge should not be patented (but then use various tricks to sneak software patents through anyway). Similarly, software is unusual in that it consists of many smaller, pre-existing elements put together in new ways: if any of those basic building blocks have been patented, it becomes almost impossible to code.

Once people sit down and consider these all these arguments, it soon becomes apparent that software patents are not beneficial, and in fact are downright harmful to digital innovation. But, of course, that's the problem: very few people (aside from lawyers and sad individuals like me) sit down and spend much time grappling with these issues. This makes it hard to get across to people coping with the day-to-day issues of running a business, say, why abolishing software patents is so important.

What we really need is an extremely gentle introduction to this whole area that requires little strenuous thought and yet manages to convey the complex issues clearly. That's precisely what a new video called “Patent Absurdity: how software patents broke the system” aims to do. It's been put together with support from the Free Software Foundation and made, needless to say, using entirely free tools, and available to watch or download in Ogg Theora (with Vorbis audio) format, a format unencumbered by software patents.

What makes this film so appealing is that it consists largely of interviews with some of the key people in the world of free software and related areas, who tell the story of how software patents came about, and why they are really bad for everyone (well, apart from patent trolls):

Patent Absurdity explores the case of software patents and the history of judicial activism that led to their rise, and the harm being done to software developers and the wider economy. The film is based on a series of interviews conducted during the Supreme Court's review of in re Bilski — a case that could have profound implications for the patenting of software. The Court's decision is due soon...

With interviews from Eben Moglen, Dan Bricklin, Karen Sandler, Richard Stallman and others...

As well as being probably the best introduction to a complex area for non-technical users, it's also a great way to see what some of the biggest names in the free software world look and sound like. Highly recommended.

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