

Patently Absurd - Copyright Law Can Meet the Needs of Software Developers - binarybits
http://www.cato.org/pub_display.php?pub_id=13735

======
justinsb
So DataTreasury fixed the way check clearing works, apparently pioneering a
new digital approach instead of mailing around checks; implemented it; raised
money and created 100 jobs; but couldn't get the banks to work with them. The
banks then took the idea and implemented it themselves, driving DataTreasury
out of business.

Now their investors are getting some money back by licensing the patents to
the banks, so they'll (hopefully) be willing to invest in innovative startups
that have to work with incumbents again.

Next time a small innovative company comes along, the banks are (hopefully)
going to think twice before just deciding that they can easily re-implement
their ideas.

This doesn't seem to me like a particularly good example of the patent system
gone wrong. To me, this looks like exactly what the patent system is supposed
to be: protection for those with innovative concepts, so that they can have
the opportunity to commercialize their inventions without incumbents simply
cloning their hard work.

~~~
bermanoid
_So DataTreasury fixed the way check clearing works, apparently pioneering a
new digital approach instead of mailing around checks; implemented it; raised
money and created 100 jobs; but couldn't get the banks to work with them. The
banks then took the idea and implemented it themselves, driving DataTreasury
out of business._ (snip) _To me, this looks like exactly what the patent
system is supposed to be: protection for those with innovative concepts, so
that they can have the opportunity to commercialize their inventions without
incumbents simply cloning their hard work._

So you'd agree that if things were right in the world, we should all be using
the original version of WebCrawler today, because it pioneered the idea of web
search, which these other horrible idea-stealing companies like Google took
and re-implemented?

Do you really think that's the way business should work, that whoever first
notices that a problem needs solving (and bothers to submit a patent
application) should have a long-term monopoly on solutions to that problem?

Personally, I'd prefer that the means of solution, if non-trivial enough, was
protected, rather than the entire set of all possible solutions to a problem.

~~~
justinsb
"Personally, I'd prefer that the means of solution, if non-trivial enough, was
protected, rather than the entire set of all possible solutions to a problem."

That's exactly what patents are.

~~~
bermanoid
Well, it's what patents are _supposed_ to be. In reality, it all depends where
you draw the line between "problem" and "solution", and IMO this is where a
lot of patents, especially software ones, go seriously wrong.

If the problem is defined as "send images of checks instead of checks", then
DataTreasury _is_ trying to assert ownership over the entire problem rather
than their particular solution - they're claiming that any solution that deals
in images of checks instead of physical checks infringes, regardless of how
it's implemented.

If you define the problem as "don't send physical checks", then sure, the
particular solution, "send images of checks instead" is what they're asserting
ownership over.

But in that case, the non-triviality of the solution is seriously
questionable. There's no engineering insight at all required to come up with
that, and it's one of the first things any group of people would think of when
presented with the problem. The entire difficulty is all in how to actually
implement such a system (and pre-1994, those implementation details made it
unlikely that such a system would work).

IMO, in a situation like this, what the patent should cover is the new stuff
that DataTreasury actually invented (and I agree that there is some non-
trivial content there), _not_ the entire high level problem that their
invention allowed them to solve.

~~~
ScottBurson
I think you've hit the nail on the head.

So many patents these days (in software, at least) are just as you describe:
cases where someone realized that a problem existed, came up with a quite
straightforward solution, and patented it.

We need Congress or the courts to tell the PTO that "obvious" means "the
solution is straightforward given the problem". And then, of course, we need
to get the PTO to hire software engineers who actually know how to build
things, so they know what that means.

------
petegrif
This is a frighteningly naive article. Consider the following extract: "There
are at least three reasons to exclude software from patentability. First,
software development is an individual, creative activity, more akin to writing
a novel than designing a jet engine...Second, software patents are especially
prone to litigation...Finally, software patents are unnecessary because
software is already eligible for copyright protection...As long as programmers
write their own code from scratch, they can be confident they aren't
infringing others' copyrights."

The idea that software development is the sole province of the lone inventor
is both wrong and irrelevant. The reason that our constitution facilitated
patents was nothing to do with how many people invented something but rather
with encouraging disclosure of the result.

If we stipulate that software patents are frequently violated...so what?
Without further analysis of why or whether specific improvements to the system
would be helpful this is a dangling factoid - no more.

Finally, the idea that copyright provides any kind of protection for software
is so ludicrous the writer's naivety is laid bare. Copyright protects only the
expression of an idea. In the case of a work of art such as a novel or
painting the expression is critical to the work and copyright is a valuable
protection. But if a programmer sits with original source code before him and
rewrites it in another language thereby benefiting enormously from the
original work but changing the expression completely they may indeed be
programmers writing "their own code" but it certainly isn't "from scratch",
and whilst he is right that "they can be confident they aren't infringing
others" it is blindingly obvious that they have copied. Copyright is worthless
if the expression doesn't matter and all that matters is functional
equivalence. And guess what, users don't give a rat's ass how a program is
expressed so long as it works.

~~~
binarybits
Thanks for reading my article, and for sharing your perspective on it.
However, I don't think you understand how copyright law applies to computer
software. Translating a computer program line-for-line to another programming
language doesn't avoid liability for copyright infringement. If it's
"blindlingly obvious" that a copy was made, a court is going to say
infringement has occurred.

I recommend reading about clean room reverse engineering. That's what you have
to do to copy software without infringing its copyright. It's doable, but in
most cases it'll be more, not less, work than writing your own software from
scratch.

~~~
ScottBurson
It's true (AFAIK; IANAL) that if you are reading someone's source code and
writing your own based closely on theirs, you may well still be infringing
their copyright.

But the parent has an valid point nonetheless. If you do a clean room
reimplementation of a program, then you are off the hook as far as copyright
goes. Yet the user may not be able to tell the difference. In short, the user
cares about the functionality of the program, not its expression (the source
code).

I think that's a valid argument that copyright protection is not entirely
sufficient for software, and that patents could have a useful role to play.

Personally, I think the problem with software patents today is that the
obviousness bar is far too low -- we're patenting problems, not solutions. See
my comments elsewhere on this page.

~~~
binarybits
But clean-room engineering is almost always _slower_ than writing the software
from scratch. Which, AFAICT, is what most companies actually do except in the
rare case where they need to achieve interoperability with an existing product
(like the early PC clones where bug-compatibility with the IBM PC was
essential). Right?

~~~
ScottBurson
I don't know if it's slower or not. It takes a certain amount of time to
develop a functional spec; you have a head start if you have a working example
in front of you.

I think the main reason you don't see more clean-room reimplementations is
simply, as you say, that level of compatibility is rarely necessary -- indeed,
it's often considered undesirable, even by the users.

------
6ren
I agree with the article that broad patents are harmful - and if massive banks
cannot get a fair outcome in the courts, what hope is there for the rest of
us?

I also agree with the implication that patenting "specific techniques" is
beneficial. The history of the industrial revolution is littered with such
innovation. It's only correlation, but the places with patent laws also had
the most vigorous innovation. At that time, the newspapers were filled with
new innovations and inventions, and people seemed to be falling over each
other to invent something new, and to patent it. _They_ thought patents
promoted innovation - and the drafters of the US constitution thought so too.

Personally, I would love to see new specific techniques being invented, rather
than the next facebook, or the next webapp of something already done offline.
The latter can be really useful and a great benefit to the world, but it
doesn't stir my soul. I want new technology and entirely new ways of doing
things! To make this more concrete:

\- I would say that while Card Case's geofencing payments
(<http://news.ycombinator.com/item?id=3189438>) is a new and cool idea, it
should _not_ be patentable.

\- I think that Ken Thompson's specific mechanism for rapid regexp matching
should be patentable
([http://www.cs.princeton.edu/courses/archive/spr09/cos333/bea...](http://www.cs.princeton.edu/courses/archive/spr09/cos333/beautiful.html))
The _idea_ of using regexp for search was new and cool (actually
groundbreaking), but it's only the _specific mechanism_ that should be
patentable. Which is what Ken did.

------
WildUtah
This is nice because the Republican Supreme Court justices voted 4-0-1 in
favor of the maximum possible patenting of software in the Bilski case last
year. Democrats were 4-0 against software patents.

Scalia was the one deciding vote and refused to join either side's opinion on
the actual subject of software patents. His decision is tentative and
equivocal on the subject of software and business method patents.

This article appears in the National Review, the thinkiest of the Republican
news magazines. Perhaps it can help bring a little of the craziness among
Republican judges back to reason on a subject central to our industry's future
on these shores.

~~~
tptacek
Generally speaking, even though it probably feels unnatural and even dumb to
have to think this way, if you have to frame a comment in terms of
"Republican" and "Democrat", you're probably hurting the discourse on HN.

As it stands, I promise you there are many many conservative technologists who
agree with your take on the patent system, but have wildly different takes on
e.g. public sector unions and school choice.

(I'm not one of them; I'm a dyed-in-the-wool liberal. Ironically, I'm actually
less sold on how horrible patent litigation is than most of my conservative
friends.)

Speaking of judges --- and I thought your horse-race analysis was interesting,
even if it made me queasy --- to the extent that there is really a such thing
as a "Republican" or "Democrat" judge (as opposed to a liberal-leaning or
conservative-leaning judge, or an "orthodox" or "reform-minded" judge) ---
there are influential conservative judges who do not have knee-jerk pro-patent
thoughts. What does Posner think about the patent situation?

------
HistoryInAction
Nice article, but too bad you didn't bring up patent pledge:
www.thepatentpledge.org

------
jbooth
This is the kind of thing that both sides of the aisle should line up behind.

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LuxuryMode
Great read and great points.

