rev. 15 April 2009; get the PDF

The laws that protect the creation of content are manifold and complicated—even byzantine. America has copyright protection, which applies to concrete expressions of information, trademark protection, which protects distinctive symbols or verbiage associated with a legal entity, and patent protection, which protects “(1) processes, (2) machines, (3) manufactures or (4) compositions of matter” and is perhaps the least understood of all the various kinds of intellectual property protection (Guntersdorfer, 2003).

The explosion of the Internet in the late 20th and early 21st centuries has thrown into stark relief both the legal problems associated with protecting content in a digital age as well as the ethical issues inherent in the existing process for acquiring official intellectual property protection and the rights afforded involved parties in a redress of grievances. Copyright law specifically has come into public consciousness primarily due to the popularity of filesharing: for all intents and purposes, the advent of modern filesharing was the 1999 arrival of Napster, a program which allowed anyone to exchange digital copies of music online, for free. Legal problems eventually forced Napster to shut down (Ante, Brull, Herman , & France, 2000), but its legacy leaves not only alternative modes of filesharing, but a whole host of new web-based content creation engines that toe the lines of fair use.

The politics of copyright is, despite its complexity, relatively straightforward1 and beyond the purview of this writing. More relevant to the machinations of the world of business are patents, which tend to pertain to the inventions and processes that drive economic engines. While some companies, such as Coca-Cola, eschew the legal—albeit ephemeral—benefit of patents in favor of strict secrecy, the legal mechanism is still quite popular: the United States Patent Office grants between 175,000 and 195,000 patents every year (“U.S. Patent Statistics,” 2009).

Ideally, patent mechanisms act as a function of market efficiency: by protecting corporate or industrial investment in Research & Development, it promotes economic growth, protects ingenuity, and rewards success; most patent law even allows for the eventual “freeing” of the patent after set duration—now usually twenty years (Heisey, King, Rubenstein, & Shoemaker, 2006, pp. iii-v, 4-7). What has come to pass since the 1970s, however, is a new scope of invention—specifically, computer software—that the existing patent protection mechanism is ill-equipped to handle. The critical question this raises is such: to what extent can the granting of patents for software be considered ethical? Conversely, if this is not the case, to what degree is it unethical or antithetical to proposed ideas of market efficiency?

It is vital to illustrate the very important distinctions between copyright and patent when it comes to computer software. Programs consist of written code (called “source code”), usually in a high-level programming language, which is at least partially intelligible to a human reader: this code, like any other written work, is subject to copyright. When portions of the source code to Microsoft’s Windows® Operating System were stolen and distributed on the Internet (Lemos, 2004), the case was one of unauthorized distribution of copyrighted content, on par with selling bootlegged DVDs. All source code must eventually be “compiled” to create the usable form of software that can be run on personal computers; the compilation process turns source code into a series of 1’s and 0’s, which the computer uses to runs billions of mathematical operations per second. Abstractions aside, all computer programs are little more than large lists of math problems which produce a desired result. Software patents are, at heart, an attempt to gain a “monopoly” on this math (Guntersdorfer, 2003).

“Many politicians […] don’t understand what software patents do. They often think patents are similar to copyright law […], which is not the case,” writes noted open source software1 advocate Richard Stallman (2005). He proposes a hypothetical scenario wherein literary concepts can and are patented, and Victor Hugo is unable to write Les Misérables because some lucky entity has acquired a patent for “a communication process that represents, in the mind of a reader, the concept of a character who has been in jail for a long time and subsequently changes his name.” There exist, he insists, patents for such simple things as a progress bar, or accepting online payments via credit card.

To such opponents of software patents, the very nature of patents is inherently unethical in this area of creative content: rather than protect the ingenuity and effort of intellectual investors (so to speak), it rewards those who seek to manipulate the legal system in order to monopolize generic or overly-broad concepts.

In order to examine the ethical ramifications of patents, some working ethical precepts must be established. Specifically:

  1. Economic efficiency is an ethical good insofar as it contributes broadly to the public welfare, within normative moral constraints (Schultz, 2001, pp. 12-14).
  2. Intellectual investment, in the form of corporate research and development or personal ingenuity, can and should be rewarded with an as-yet unspecified right to profit from said effort. This, besides being an ethical good in and of itself, directly contributes to principle #1 (“Are Efforts”, 2001).
  3. The right to personal property, including intellectual property within reasonable bounds, is unambiguous and unabridged.

In addition to the aforementioned points, several more may be offered which are relevant to the discussion of computer software:

  1. The labor efficiency offered by computer software (as well as its attendant effect upon the overall economic good), may be assumed of equal importance to the economic good of content creators—i.e. interoperability, work efficiency, and accessibility of data is at least as important as the right of technologists to individually profit (Lenk, Hoppe, & Adorno, 2007, pp. 91-92).
  2. The unencumbered public availability of processes or information previously under patent protection,whether by design (read: open source software or open specification) or expiration of patent2), is considered an unambiguous public good (“Are Efforts”, 2001).
  3. Patents which are overly broad—including those which infringe prior art—have an unnecessarily depressive effect upon both technological progress and the economy as a whole.

As Bessen and Meurer (2008) note, patent litigation has rapidly outpaced other business-related litigation since the 1980s, second only to copyright litigation, and that mostly due to more or less legitimate claims of filesharing-related infringement (p. 127).

Whether software patents are helpful or ethical at all is more to the point. Allison, Mann, & Dunn (2007) quote principal witnesses at a 1994 patent hearing: “Software should not be patented, not because it is difficult to do so, but because it is wrong to do so”; “[t]here is absolutely no evidence whatsoever, not a single iota, that software patents have promoted or will promote progress” (1581). The authors conclude that policy debate now shies away from the common idea that the patent system is broken and unfair: the hue and cry, especially from software companies who ostensibly rely on patents, is to require a technical contribution—that is, implementation aside from a theoretical business method (1621-22).

Early patent law recognized that software seemed inherently unpatentable because it was little more than structured math (Guntersdorfer, 2003; Klemens, 2006, p. 4); mathematical formulae, were they to be subject to such “protection,” would be prohibitive to innovation and damage the public good. Mathematics, fundamentally, isn’t subject to ownership any more than other means of describing reality, such as physics or chemistry. Because software patents can describe not simply a method for obtaining a result, but the very idea of obtaining that result—for instance, Stallman’s example of the patent for credit card payment, irrespective of the code used to construct the process—they have ceased to reward innovation and instead hamper technological progress, deny certain freedoms (to those, like Stallman, who aspire to such principles in software), and have a necessarily depressive effect upon economies and livelihoods, in contravention of principle #6.

Klemens (2006) points out that the very worst patents are often cited as an argument against the ethicality of all software patents: his favorite example is a patent granted in 2002 for three short lines of JavaScript code, a language available for use since 1995 (p. 2). It would be unfair, however, to judge all software patents, or the patentability of software, based upon a portfolio of errors by the United State Patent and Trademark Office. Is there any ethical good that may be derived from software patents broadly?

It is necessary at this point to consider principle #4, which weighs the ambiguous claim of programmers or businesses upon a technology or technological idea against the immeasurable claim of other businesses and the consuming public to interoperability. This piece is being written in a file format called Open Document Format (compare to Microsoft’s “OLE2” format, used in its popular productivity suite, reflected in “.doc” and “xls” files), in a free program called OpenOffice.org. This program also has the ability to open, edit, or create documents in Microsoft’s proprietary format; were OpenOffice.org not under the protection of the large software vendor Sun Microsystems, it is likely that the developers of the program would be sued for patent infringement, since Microsoft has a number of patents which ostensibly pertain to the OLE2 document format.

The chilling effect that such a legal situation has upon development of third party programs which can interoperate with Microsoft’s file format is well-known in software development circles. It effectively means that Microsoft is remunerated twice: one stream of revenue comes from the sale of its productivity suite (the quality of which directly affected the ubiquity—and market force—of OLE2 files), and the other—due to patents upon the data structures of OLE2—from companies which choose to license the specification rather than risk legal battles.

There is little question that Microsoft deserves the first stream of revenue, which is related to a copyrighted product (a “physical” good) that it sells; that some portion of the sales may have to do with the ubiquity (read: business necessity) of its file format is aside from the point. The fact that the company’s patents effectively prohibit competition by making interoperability cost-inefficient is, while a net economic good for Microsoft, an ethical downfall for everyone else3. Lawrence Lessig, a well-known proponent of more “open” practices pertaining to intellectual property, insists that although official case law has yet to demonstrate the validity of the previous statement as measured by favorable judgements, common sense and observation indicate that these kinds of patents primarily serve as a way to keep “early innovators” safe from later, third-party progress (Babcock, 2005).

Assuming some unquantified validity to Microsoft’s patents upon its OLE2 format, how does that compare to a public need for unfettered access to interact with that format? Rawls argues unequivocally that justice “does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advantages enjoyed by many” (1999, p. 3). In the tradition of Omelas, so Rawl’s sense of justice is inflexible (or so he supposes) when it comes to the inalienable rights due every man. Interoperability and the public good, Rawls may argue, are important, but should never be sacrificed if the right of the programmer/inventor to profit from his intellectual labors is to be infringed.

The hypothetical dystopia described has no boundaries: it is essentially a view of a communistic system in which the right to personal property is negated in favor of public benefit from shared resources. Though a different argument entirely, such systems have failed to produce thriving communities achieving a critical mass in the lengths to which it will go to redistribute wealth. However, the argument against software patents is not, at heart, a call for intellectual property to be redistributed to bolster a common good. Even if the dense calculus of utilitarianism was shown to be unarguably true, no ethical principle mandating the forcible forfeiture of IP is likely to be justified by any mainstream ethicists. The argument against software patents is that they do not represent intellectual property at all, but rather a manipulation of the legal system to achieve particular economic ends; it is possible, since the criteria do not require implementation, to patent software which hasn’t been written (Klemens, 2006, pp. 3-5).

The question initially posed was the degree to which patents are ethical or unethical. Assuming that Rawls’ theory of justice as morally paramount—as embodied in principle #3—is significantly correct, and understanding the particular vagaries of software and its algorithmic nature, certain conclusions may be drawn.

First, existing copyright laws do well to cover a content creator’s claim to his or her labor; these laws cover—and are perfectly sufficient for—the assertion of ownership over computer programs, which are themselves physical expressions/implementations of content. In this way, the right to personal property, intellectual or otherwise, is unabridged.
Second, the application of this principle into software written under the auspices of business allows proper remuneration for investment, and contributes to overall economic efficiency and therefore a public, moral good.

Third, within this ecosystem of software, patents are extraneous, serving no apparent purpose other than artificially extending the existing copyright protection to cover content which has not been written, cannot be written, or can be written in different ways (and properly so).

Unambiguously, then, software patents are unethical, serving to abridge the rights of content creators to implement general principles in software code, to enter into competition with existing market constituents and improve the market, and to raise the overall quality of the software ecosystem—and, by extension, allow the public benefit from these improvements.

References

  • Allison, J. R., Mann, R. J., & Dunn, A. (2007). Software Patents, Incumbents, and Entry [Electronic version]. Texas Law Review, 85(7), 1579-1625. From Business Source Elite (25978301).
  • Ante, S. E., Brull, S. V., Herman, D. K., & France, M. (2000, August 14). Inside Napster. BusinessWeek, 112-120. Retrieved March 15, 2009, from Business Source Elite (3394425).
  • Are Efforts to Extend Patent and Copyright Laws Good for Business or Good for Society? (2001, July 4). Retrieved March 17, 2009, http://knowledge.emory.edu/article.cfm?articleid=363
  • Babcock, C. (2005, April 7). Stanford Law Professor Raps Patents As Barrier To Innovation. InformationWeek. Retrieved March 26, 2009, http://www.informationweek.com/news/software/showArticle.jhtml?articleID=160502321
  • Bessen, J., & Meurer, M. J. (2008). Patent failure. Princeton: Princeton University Press.
  • Guntersdorfer, M. (2003, March 21). Software Patent Law: United States and Europe Compared. Retrieved March 17, 2009, http://www.law.duke.edu/journals/dltr/articles/2003dltr0006.html
  • Heisey, P. W., King, J. L., Rubenstein, K. D., & Shoemaker, R. (2006, March). Government Patenting and Technology Transfer. Retrieved April 13, 2009, http://www.ers.usda.gov/publications/err15/err15.pdf
  • Klemens, B. (2006). Math you can’t use: patents, copyright, and software. Washington, DC: Brookings Institution Press.
  • Lemos, R. (2004, February 12). Microsoft probes Windows code leak. Retrieved March 19, 2009, http://news.cnet.com/2100-7349_3-5158496.html
  • Lenk, C., Hoppe, N., & Adorno, R. (2007). Ethics and law of intellectual property. Burlington: Ashgate.
  • Patent Asserted Against JPEG Standard Rejected By Patent Office As Result Of PubPat Request: Public Interest Group’s Review Results in Broadest Claims of Forgent Networks Patent Being Ruled Invalid (2006, May 26). Retrieved March 16, 2009, http://www.pubpat.org/Chen672Rejected.htm
  • Rawls, J. (1999). A theory of justice. Cambridge: Hardvard University Press.
  • Schultz, W. J. (2001). The Moral Conditions of Economic Efficiency. Cambridge: Cambridge University Press.
  • Stallman, R. (2005, June 20). Patent absurdity. The Guardian. Retrieved March 17, 2009, http://www.guardian.co.uk/technology/2005/jun/20/comment.comment
  • U.S. Patent Statistics Chart Calendar Years 1963 – 2008 (2009, March 26). Retrieved March 27, 2009, http://www.uspto.gov/go/taf/us_stat.htm
  1. Perhaps the most vocal advocate for user rights in the field of fair use is Lawrence Lessig; his lectures and publications are a good starting point for additional information about copyright in the digital age.[]
  2. Two similar cases are illustrative of this point: two formats for viewing images on the web, known as GIF and JPEG, both are/were encumbered by a number of patents relative to their construction. The former has passed its period of the patent protection, and the latter has failed to hold up to legal challenges, since most legal suits for compensation were initiated long after their acceptance as de facto standards (“Patent Asserted,” 2006[]
  3. Microsoft, too, ultimately loses in this regard, since it theoretically eliminates competition with legal stonewalling rather than technical innovation. In the short term, this results in market efficiency; in the long term, it leaves them more susceptible to competitors.[]
§3801 · April 21, 2009 · Tags: , , , , ·

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