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Source link: http://archive.mises.org/17900/timothy-lee-the-supreme-court-should-invalidate-software-patents-%e2%80%94-last-weekend-i-was-thrilled-to-hear-one-of-my-favorite-radio-programs-this-american-life-take-up-the-issue-of-software/

Timothy Lee: “The Supreme Court Should Invalidate Software Patents”

July 28, 2011 by

From Forbes:

The Supreme Court Should Invalidate Software Patents

Jul. 28 2011 – 9:30 am | 8,024 views | 0 recommendations | 12 comments

Last weekend I was thrilled to hear one of my favorite radio programs, This American Life, take up the issue of software patents. Computer programmers have been sounding the alarm about this problem for two decades, and it’s great to see mainstream media outlets finally start to give the issue the kind of attention it deserves. TAL devoted a full hour to the subject, focusing on Intellectual Ventures (which I’ve written about at length) and did an absolutely spectacular job.

This American Life‘s story-telling format makes it great for describing a problem, but it didn’t spend any time discussing potential solutions. So in this post I hope to fill in the gap by describing what I believe to be the best solution and how we ought to get there.

In my view, the solution is straightforward: software shouldn’t be eligible for patent protection.

Read more>>

The problem is not software patents. If you accept the logic of patents, there is nothing wrong with software patents. The problem is patents per se. And of course the good moderate Timothy Lee is not so radical as to oppose this state grant of monopoly privilege on principle: As quoted here:

As noted by Roderick Long here, “Timothy Lee writes: ‘I can’t agree with Baker that all copyright and patent monopolies are illegitimate.’

[c4sif]

{ 33 comments }

Linux Is King July 28, 2011 at 6:29 pm

One of the most blatant case is Amazon’s one click purchase. It is patented.

Now, if any other online merchant wants to offer such a feature on their website, they have to pay royalties to Amazon or else face a cease and desist letter from Amazon’s lawyers.

Complete nonsense.

El Tonno July 29, 2011 at 3:48 am

Ah, Mr. King.

Not in Europe it isn’t. The “European Patent Office” (european in name only, the adjective here is just bureaucratic landgrabbing AFAIK) says no:

http://www.theregister.co.uk/2011/07/07/european_patent_office_says_amazon_oneclick_payment_too_obvious_to_patent/

Linux Is King July 28, 2011 at 6:32 pm

I can’t agree with Stephan Kinsella either that all patents and copyrights are illegitimate and should all be abolished. However I must admit I can’t find much instances on when they are illegitimate.

The current system is currently saturated and dysfunctional.

Stephan Kinsella July 28, 2011 at 6:52 pm

The perils of an unprincipled approach.

Linux Is King July 30, 2011 at 11:27 pm

I was once a man of principle and continue to be to some extent. But what haunts my conscience and intellect is that I find that there are exceptions to principles, that the foundation of this universe is uncertainty, yin yang, good bad, predator prey.

If Jeffrey Tucker would complain that it is slavery to be bound by military service terms, then wouldn’t it be slavery to be bound a lifetime by principles no matter what the situation ?

Sometimes, in order to survive or get ahead, you have to break the rules and even your own rules.

Yes it’s perilous and I live in constant dilemmas and discomfort.

coturnix19 July 29, 2011 at 1:36 pm

If you write a software, it is already protected by copyright law. No one can use it unless you allow. Then why do you need patent? To prevent your competitors from writing analogous software! that is, to establish government-backed unjust monopoly. Nowhere but in software industry is it more obvious that patents are irrefutably evil, unjust mercantilist monopolies. Even if you support copyright you must be against patents, otherwise you are just a slave supporter. Literally, the domain of patents are ides (of certain kind, but their scope is constantly widening). Ideas are thoughts, therefore patents are a form of governmental thought control. Everyone who supports patents therefore supports 1984-style government.

Stephan Kinsella July 29, 2011 at 3:40 pm

Patent and copyright are both evil and equally horrible.

Wildberry July 29, 2011 at 4:26 pm

Stephan,

You should be pleased that someone has taken your “ideas are free” argument against IP and extended it to it’s logical conclusion. Apparently you are having an influence.

coturnix19 July 30, 2011 at 4:49 pm

You are not libertarian. Get out of this blog.

coturnix19 July 30, 2011 at 4:48 pm

You are pathetic.

coturnix19 July 30, 2011 at 4:57 pm

Why are you so aggressive? I wonder if anyone told you, but you spew aggression in your speeches and in your comments and posts as if you are some kind of Hitler, and not libertarian thinker.

Linux Is King July 30, 2011 at 11:40 pm

“Patent and copyright are both evil and equally horrible.”

But, how can you have a public identity if everybody could copy you exactly and claim to be you ? How could you be you on a grand scale in the first place if you are not allowed ownership of your public name and image and brand ?

I understand that copyrights and patents are forceful limitations of your private property, but would it be okay then to open a fake McDonald’s that looks exactly like the real one and serves the same food with the same quality but it’s not a true McDonald’s it’s just a very good copy and you did not have to pay McDonald’s any royalties nor franchises.

How could customers tell the difference and how could the genuine McDonald’s exist as an entity ? Jeffrey Tucker loves McDonald’s the way it is with copyrights and that it could not be what it is as a “God sent” fast food chain the way Jeffrey Tucker likes it if there was no way for McDonald’s to centralize it’s decision and control and own it’s public image to act as one public entity.

I am certain that a lot of entrepreneurs would like to bank on McDonald’s success on the cheap and make money off it’s reputation.

nate-m July 31, 2011 at 1:13 am

By the way. Your talking about trademarks, not copyrights. It’s a bit hard to take you seriously when you mess up on something that fundamental to the discussion.

But, how can you have a public identity if everybody could copy you exactly and claim to be you ?

They can’t. You are you and the people that know you know you. If your worried about people defrauding you and taking over your checking account or anything like that… then that is were security comes in and we certainly don’t need the government for that sort of thing

How could you be you on a grand scale in the first place if you are not allowed ownership of your public name and image and brand ?

Through relationships and certifications with your business partners and other professional relationships.

We don’t need trademarks to establish that if somebody is portraying themselves as you in order to rip off your business partners or your customers that this is fraud and your partners and customers will have the ability to go after them.

How could customers tell the difference and how could the genuine McDonald’s exist as an entity ? Jeffrey Tucker loves McDonald’s the way it is with copyrights and that it could not be what it is as a “God sent” fast food chain the way Jeffrey Tucker likes it if there was no way for McDonald’s to centralize it’s decision and control and own it’s public image to act as one public entity.

If a person replicated Mcdonalds entirely and it was exactly the same, then why the hell would it matter?

But beyond that your scenario only works if you ignore reality. The benefits to belonging to a fast food chain is that you have a pre-packaged solution. The corporation that owns McDonalds has a huge supply chain, training expertise, management experience, specialized equipment, all sorts of streamlined processes and other capital goods that they provide for your disposal for a fee.

A person of the street trying to open a single restaurant couldn’t hope to compete with McDonalds at being McDonalds. Even if they use the logos and put of clown pictures they still couldn’t match the capitalization and experience of McDonalds. They would be immediately driven out of business.

If another large company, a competitor, wanted to make fake McDonalds to discredit them then they would be defrauding their customers. The customers could then go after them for the shitty food and service they were scammed into purchasing.

If some other company decided to try to compete toe to toe with McDonalds and not defraud the customers…. then so what? Then the best company would win. It would be a open competition and whoever created the best burger joint would win.

Anyways….

When I was a fast food Junky I certainly knew the differences between different KFCs or McDonalds or Hardys or whatever. I knew which places were the ‘Bad KFCs’ or the ‘Good KFCs’. It’s not rocket science to know that customers will know differences and react accordingly without unique logos separating them. I knew which place had the good corn or crappy coleslaw. I knew which place would give me hard over cooked burgers or put way to much salt on fries.

I am certain that a lot of entrepreneurs would like to bank on McDonald’s success on the cheap and make money off it’s reputation.

If they defraud their customers through this deception then it’s the customer’s right to get compensation.

Sovy Kurosei July 28, 2011 at 8:48 pm

I am always fascinated that libertarians are their own worst detractors and would rather argue amongst themselves on websites than, y’know, do anything tangible. God forbid you post someone in positive light if they don’t 100% agree with your personal views.

Matthew Swaringen July 28, 2011 at 9:32 pm

Because voting for the lesser of 2 evils and compromising principles has done well for us?

nate-m July 28, 2011 at 10:01 pm

Well you can always observe and if your lucky you may learn something about what it is like to be a principled, independently minded human being rather then a wooden citizen of the establishment.

Unlike what you’ve been taught your entire life, disagreeing with other people is not a sin. In fact: disagreeing with people in authority can be a virtue.

J. W. July 28, 2011 at 11:03 pm

I’m not libertarian and I appreciate this site for presenting views that make me think. Isn’t getting people to consider your views ‘doing something tangible’? Plus, I figure that people who post on this site do more in life than just post on this site. So I don’t get your point.

Sovy Kurosei July 29, 2011 at 10:52 pm

That isn’t what I would call tangible. Having someone consider, adopt and act upon those ideals is.

Honestly? I think that is all they do. I don’t see any articles on this website of Austrian economists carrying out civil disobedience against the government.

J. W. July 29, 2011 at 11:35 pm

It is good from an author’s perspective that readers “adopt and act” upon his ideas, but such matters are beyond his control. If I find a view to be true, then I adopt it. If I determine that it is wise to act upon it in a given circumstance, and emotions do not prevent me, then I act upon it. The author cannot hold my hand along the way. He can, however, get me to consider his views, which can be the start of the process. It’s like what you’re doing here: you cannot make me adopt your view or act upon it, but you can (and are evidently attempting to) persuade me.

“I don’t see any articles on this website of Austrian economists carrying out civil disobedience against the government.”

I don’t see any articles of Austrian economists baking birthday cakes. What’s your point?

DixieFlatline July 30, 2011 at 10:21 am

Every act of market exchange is civil disobedience against tyranny and a boon to society at large.

Linux Is King July 30, 2011 at 11:47 pm

So when I buy my groceries, I am disobeying the government and fighting tyranny ?
Same thing when I fill up my gas tank ?
Same thing when I purchase an “amazing” hamburger from McDonald’s ?

A new McDonald’s slogan:
Fight the government and tyranny,
buy a McFlurry,
LOL :-D

Vanmind July 30, 2011 at 5:28 pm

As Robert LeFevre would have said, political activism is inherently immoral. Mind, his name might not carry much weight with you.

Want to affect some serious civil disobedience? Start or join an alternative economy (i.e. a real economy) and abandon the rest to the criminals & accessories-after-the-fact. In other words, forget about political activism and become an economic activist.

El Tonno July 29, 2011 at 3:50 am

Libertarians renounce violence. That’s already a big no-no in my book because it means being blocked forever in status sh*t.

Hold on, there is a big blue van stopping at the kerb…

Rory Carmichael July 28, 2011 at 10:22 pm

You can think what you like about the validity of patents and other intellectual property, but that doesn’t change the fact that software is only patentable at this moment in the United States due to pervasive and fundamental misunderstandings of its nature by the legal system.

In particular, US patent law denies the patentability of mathematics, and every single program is provably a mathematical equation. You could accept a “logic of patents” that encompasses software, but the US did not do so, and if you care at all about laws being limited to what they actually say (which seems a pretty weak limit on the reach of the law, but better than the alternative) then you should acknowledge that this is a problem.

Here’s a link to groklaw’s wiki about the issue http://en.swpat.org/wiki/Software_is_math

nate-m July 28, 2011 at 10:53 pm

What type of ‘things’ patents apply to is completely arbitrary. There is no rhyme or reason to any of it. The law is just made up as people go along. No principles, no guiding logic. It’s just whatever seems like a good idea at the time.

It’s all fine and dandy to say that ‘patents do not apply to math’ and ‘software is fundamentally math’ and then try to say that the government is breaking the law or some sort of crap like that… but that sort of logic does not really fly when it comes to government.

Thinking that you can use the law against the law makers is a exercise in utmost delusion. All the government has to say is that ‘software is involves math, but is not math’ and it completely blows any chances you have at fighting software patents.

Ever wonder why nobody tries to argue that? Because if the supreme court agrees with ‘software is not really math like math formulas is’ then your completely shit out of luck and have effectively eliminated any restraint on patents.

The only way to change the system in the system is to convince politicians that their jobs are threatened by the existence of software patents.

THAT IS IT.

This is how democracy works. The politicians are there to plunder and exploit the system for their own benefit and their buddy’s. This is why they are politicians in the first place. If being pro-software patents means that they get more opportunities to extort money and power from the public and businesses then they are going to be pro-software patents. If being anti-software patents means that they can avoid losing their power then they will be anti-software patents.

The anti-software patent’s folk’s job is to prove to politicians that they will suffer from not supporting their viewpoint. If you can do that then you can eliminate software patents.

This is the truth and is the fundamental reality to democratic-style state government.

Good luck getting there.

El Tonno July 29, 2011 at 3:55 am

The RSA cryptosystem was patented [and languished sickly during the time it was]. It’s just using the fact that the precise mathematical operation used happens to be computationally easy in the direction f(x) but computationally hard in the direction f^-1(x) – as far as we know.

Stephan Kinsella July 29, 2011 at 7:47 am

You could say every design for the arrangement of a physical object is also mathematical too–in fact the patents are based upon written documents setting out a certain pattern; the writing it representable a string of 1s and 0s.

But I believe it is wrong to say that software is not patentable, under the original patent statute. That statute specifically authorizes processes (35 USC § 101). Quite often you can describe the inventive aspect of software as a process, on the flow-chart level. If you get a patent on this method or process, then any software that runs according to that process would be infringing the patent.

One can argue the patent statute is inherently contradictory, and no doubt it is, as most statutes are, if not internally, then with respect to other statutes in the same legal system. The prohibition on patent on math algorithms does seem inconsistent with the patentability of some machines, applications, or processes. Thus the court are forced to dream up arcane and somewhat arbitrary doctrines in an attempt to make the inconsistent parts mesh together–such as the current “Tied to a particular machine or Transform a Particular Article” test of In re Bilski (discussed here).

Wildberry July 29, 2011 at 4:40 pm

Homicide and self defense are inherently contradictory. Only only when you understand the basis for that contradiction does it vanish, in the serice of higher order principles.

I guess one could argue that such an arcane and arbitary distinction between where one ends and the other begins is an attempt to make the inconsistend parts mesh together in a coherent doctrine.

What standard of evidentiary proof is not somewhat arbitrary? For example, what is the exact meaning of “beyond a reasonable doubt” or “clear and convincing evidence” or “a perponderance of the evidence”? Can you draw a bright line between when the rules of murder and self-defense should always be distinguished, or do you find that facts are relevant?

While I may agree that some negative consequences may result from recognizing both patent and copyrights in software, to complain about the arbitrary nature of the rules is hardly a pursuasive argument unique to IP.

Stephan Kinsella July 29, 2011 at 8:04 pm

Wildberry, the point is these are legislated systems. That is the reason they inevitably have inner contradictions. There is no guarantee of coherence between statutes or even internally to a given statute. This is one problem with the idea of “making” law by legislation. When law has to grow and develop organically, squaring each new development with previous ones (or expressly overriding them where there is conflict), there is more cohesion. Of course IP law cannot develop this way; it is and must be a creature of statute, so we can expect it to be incoherent in addition to being unjust. And that is indeed what we see.

Andras July 30, 2011 at 9:21 am

Stephan,
I truly hope Wildberry will respond but I could not resist.
The statute are created by humans, too, and conversely, legislation from the bench will be codified as well, even if informally. Law, like property, is a human device. It is subjective, with its conflicts, incoherencies and contradictions. From the current state to your ideal world, in principle, there are infifnite number of ways. No judge will ever say that his decision is intermitten. It will be offered as the best and final solution. However though, I even doubt that your ideal world can ever exist in human societies. Unless we go the way of the insect “societies” ‘ chemical communication, thinking and reasoning (good and bad) and with it, subjectivity will never be eliminated.

nate-m July 30, 2011 at 10:07 am

The statute are created by humans, too,

Is that what Stephan said?

and conversely, legislation from the bench will be codified as well, even if informally.

Laws through court precedent is extremely bad policy, IMO. It’s a huge problem with our legal system.

If that is what your talking about.

It is subjective, with its conflicts, incoherencies and contradictions.

That is why we need to have a legal system were we have only the restrictions and laws we absolutely must have to maintain peace and that any restrictions above and beyond that only exist through voluntary agreement.

We also need to eliminate the monopoly of the court system. Parties entering into contract agreements need to be free to choose what court system should be used for arbitration. People having disputes need to have the choice on who they rely on to resolve those conflicts. The only way to keep courts and judges honest and fair to have competing systems. Any system, like our legal system, that is this powerful and is a monopoly is going to be full of abuses and absurd judgements.

While it’s impossible to have a perfect system it’s easy to see how things can be much better then they are now.

Unless we go the way of the insect “societies” ‘ chemical communication, thinking and reasoning (good and bad) and with it, subjectivity will never be eliminated.

That seems to be what people think that centralized court system can provide. Create enough automation and rules for everything in existence then the government has no choice but to be ‘fair’ and ‘objective’ about everything. Which is just idiotic.

Andras July 30, 2011 at 10:26 am

My understanding is that anarchists want legislation from the bench, even if from private and/or alternative benches.
Conflicts are inherent in human societies. Why would they stop at the bench. Moreover, what about enforcement?
And I agree, longing for the order of insect societies is idiotic.

nate-m July 31, 2011 at 12:46 am

My understanding is that anarchists want legislation from the bench, even if from private and/or alternative benches.

Generally speaking in disputes they will need to agree on a arbitration company to deal with the judging part. So they would choose based on the history of the judges. I suppose some companies would want to use precedent to judge cases while others may want to take a more unique approach to each case. What way people want to go would end up being based on what is best for their own advantage and their insurance companies.

Most ‘legislation’ would probably grow up through convention and standards that tend to grow up around industries. Like the first few sewage treatment contracts would have to be figured out from ground up and disputes and damages would be hard to assess, but after a while a pretty good idea of what works and what doesn’t work would be realized. Then after a few years standardized contractual forms and ‘common law’ type things would be established to lower legal overhead for routine agreements.

It’s really just speculation. It is very difficult, or even impossible, to figure out what sort of legal innovations would be developed when the judicial system is no longer monopolized and is subject to market competition.

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