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Patents in the Digital Age

I was just reading this (which coincidently seems much better written in terms of style and content than what I write here on my blog),

“In my opinion, copyright and patent laws are entirely suboptimal, especially with regard to the digital side of things. The concept of a patent is a noble one — that is, it allows the inventor of some concept to be protected by the law for a certain amount of time in the production or implementation of that concept. Before patents, inventors would hold their ideas very close to their chests, so nobody could steal them. They’d make a killing selling whatever it was they invented, then take their secret to the grave. Obviously the loss of knowledge is regrettable, but there was no way to let future generations benefit from the invention without giving away its secrets (and thus, your rights). Enter patents. The concept behind patents is that they provide protection for the patent holder for a time, given that he describes it in enough detail for his idea to be replicated. This solves the problem at hand quite neatly: the inventor keeps a grip on his invention, and is given ample time to monopolise upon it. If the inventor were to pass away, the knowledge is retained and can be referred to in the future.

The period during which the patent can be enforced is, in most cases, 20 years. But, wait — if we’re to apply such a law to computer programs… when was the last time you used a 20-year-old piece of software? When was the last time you used even a 7-year-old piece of software? Probably about six years ago. Patents are still a good idea in software, but the patent term needs to be drastically reduced for it to apply sanely. 18 months, at a maximum.”

It got me thinking, patent law was really designed for a different age where you invented things such as the telephone and the Rubik’s Cube. Patents documented the inner workings of the invention and how to build it. Thus after the patent owner has made some money from their invention and it falls into the patent equivalent of the public domain anyone else can make it and build upon it. Enter the digital age where generally copyright is used to protect computer software rather than patents (I’ve heard of software patents, but they don’t require submission of source code). Copyright was intended to protect creative works where there are no “inner workings” or “instructions” needed in order to build it. Given the fact that most (maybe not most, but lots of) software is written in programming languages that get compiled into machine code, computer software needs these “inner workings” and “instructions” i.e. the source code in order to build upon it once the original creators have made some money.

There are two problems here with the fact that software falls under copyright rather than patents.

  1. When the protection expires there is no method to ensure that the source is published, and
  2. secondly copyright laws currently last life + 70 years. In some cases this could be 160 years it takes for the copyright to expire. By then the technologies would have most certainly changed and the software would be of no use (even if the physical storage medium has survived that long (though I think laws now allow copying for backup)). As suggested in the quoted article above a reasonable protection length would need to be less. I think 2-3 years, but really an experienced team of worldwide economists would be able to come up with this figure much better than I could. This would, I think, push innovation forward as software creators would need to come up with new things in order to continue the income stream.

But what if the government’s were to introduce some new patent laws that tried to put computer software under patent laws rather than copyright (yes I know that’s a semantics issue, but I’m referring to the current laws). Well lets say that the law said that you will only have protection for your computer program if you give us the source which we will lock up and then release after a few years. Despite the fact that you would need to employ a lot of patent officers, I don’t think this will work because,

  1. its hard to tell if the source that was provided really was everything for the program (i.e. manual checking would be needed.)
  2. you could argue that machine code is the source (i.e. say you wrote the program in machine code when you really used C++)
  3. that creators will just say “okay we don’t need protection from the law, we won’t use patents, we’ll just implement our own DRM and skip your patent laws”. This is even worse as it locks up the program for as long as it takes to crack the DRM.

Another key thing is that even in the time of patents if you bought a product that was protected under patent law, you were still allowed to make changes to it. For example if you bought a Rubik’s Cube and if it was protected by a patent, the law could not stop you for example pulling it apart to see what it looks like on the inside, or writing some numbers on the outside squares. However now in the digital age and particularly with the DMCA you cannot even do this (though I don’t think Australia has any law that is equivalent to the DMCA that restricts you circumventing DRM). In these time it is apparently illegal for you to open up and change your own products that you have purchased and own.

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