EFF: "Hey, legislators, you should abolish this system that we've had for decades and you don't understand. Let me tell you why the interlocking parts of a software algorithm are totally different from the interlocking parts of a car engine ..."
Patent Trolls: "This is a pie-in-the-sky proposal that would never work in practice and would undercut our economy in the one area where we're seriously dominant! [1]."
Option B:
EFF: "Hey, legislators, our economy depends on software, and patents are screwing it up. Software moves really fast, so we should limit the time a patent lasts to five years. And lots of the things that are getting patented are really obvious, so if something is so obvious that someone else invents it independently, they should be allowed to use it -- that will avoid the need for lawyers to review every single program that gets written. And software projects are often incredibly huge, so we should make it so millions of dollars won't be awarded for a violation that consists of .001% of the project. Can we hold some hearings to talk about this stuff?"
Patent Trolls: "These are pie-in-the-sky proposals that would never work in practice! Hang on while I try to come up with a reason for that."
Option B is 1000 times more likely to get us in the door. And once public hearings start and legislators actually start to have some idea what the issue is, that's our chance to make the case (in the media, through lobbying, and through testimony) that we'd be better off without software patents at all.[2]
[1] "... other than music and pizza delivery, obviously."
[2] If this is true. It's totally possible that, within the boundaries the EFF is proposing -- short-lived, open-source, non-obvious, damage-limited, subject to prior art up to 2007 -- software patents would actually become a force for good, in complex areas like compression, encryption, language processing etc. A game where highly-funded research programs are racing to stay 5 years ahead of open source projects that incorporate all their best ideas could be pretty sweet. It's worth discussing anyway.
Besides the above, which is completely and utterly true, legislators often want consensus, if they can get it (I realize how crazy this sounds, given the way bills often end up). They don't want to be forced to pick sides when it's large companies that support one side vs other large companies that support the other. Not just because of the lobbying money involved, but because they think they are trying to do the right thing, and if it's 25 folks they trust on one side of an issue, and 25 on the other, they aren't likely to do anything.
Perhaps it's worth having both the maximal and the moderate positions -- the maximalists introduce the pure form of the idea, shifting the Overton window, so the more moderate version becomes palatable.
Option A:
EFF: "Hey, legislators, you should abolish this system that we've had for decades and you don't understand. Let me tell you why the interlocking parts of a software algorithm are totally different from the interlocking parts of a car engine ..."
Patent Trolls: "This is a pie-in-the-sky proposal that would never work in practice and would undercut our economy in the one area where we're seriously dominant! [1]."
Option B:
EFF: "Hey, legislators, our economy depends on software, and patents are screwing it up. Software moves really fast, so we should limit the time a patent lasts to five years. And lots of the things that are getting patented are really obvious, so if something is so obvious that someone else invents it independently, they should be allowed to use it -- that will avoid the need for lawyers to review every single program that gets written. And software projects are often incredibly huge, so we should make it so millions of dollars won't be awarded for a violation that consists of .001% of the project. Can we hold some hearings to talk about this stuff?"
Patent Trolls: "These are pie-in-the-sky proposals that would never work in practice! Hang on while I try to come up with a reason for that."
Option B is 1000 times more likely to get us in the door. And once public hearings start and legislators actually start to have some idea what the issue is, that's our chance to make the case (in the media, through lobbying, and through testimony) that we'd be better off without software patents at all.[2]
[1] "... other than music and pizza delivery, obviously."
[2] If this is true. It's totally possible that, within the boundaries the EFF is proposing -- short-lived, open-source, non-obvious, damage-limited, subject to prior art up to 2007 -- software patents would actually become a force for good, in complex areas like compression, encryption, language processing etc. A game where highly-funded research programs are racing to stay 5 years ahead of open source projects that incorporate all their best ideas could be pretty sweet. It's worth discussing anyway.