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Possible use for 'software patents'? - Journal of Omnifarious

Nov. 6th, 2005

02:40 pm - Possible use for 'software patents'?

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I just posted this article on Advogato, and I'm interested in what you all think of it. I'll duplicate the article in a cut so you don't have to follow the link if you don't want to.

I've been thinking about what would happen to software development in the complete absence of patent and copyright protection. It's an interesting thought experiment, and I believe I may have uncovered a case for a form of software patents.

If there were no copyright or patent protection for software, what would happen?

I believe that what would end up happening is something that looks very much like the Windows shareware community today. You would get closed source programs distributed for nominal cost. You would have some features unavailable until you paid money for an activation key of some sort. And those activation keys would have only very limited DRM associated with them since the money collected only justifies a very low barrier, and a higher barrier would also inspire a vibrant market in cracking programs and key exchange.

I suspect larger, more complex programs would end up being developed by specific companies for a specific purpose, and may leak out, but would probably not be actively distributed outside the company. I'm not sure if anybody would ever get around to developing a widely used platform. Hardware manufacturers might get together to create one, but I suspect many of the details of its internal operation would remain secret, or only available on a trade-secret basis. Much like what happens with non-Linux based networking hardware today.

I believe that is something close to the natural free-market state of the software industry. This is an off-the-cuff analysis, and I might be missing something important.

In this scenario, there is no Open Source software. It is somewhat paradoxical that the GPL relies on copyright law in order to force the release of source code.

So, maybe a form of software patents are a good idea?

This leads me to question how you might encourage the release of source code for software. And my mind turned to the means for encouraging people to release detailed plans for mechanical devices and such. Patents.

You grant someone a patent on a piece of software. The patent filer must present the full source code to the software in order to recieve the patent. The patent allows them to keep others from distributing the software on a commercial basis.

So, they exchange some ability to monopolize the distribution of a particular piece of software for the source code to the software. After their patent expires, the source code becomes public. It must be complete, and in the form the programmers originally used to create the software. An average software developer must be able to transform the source code into a working program with a minimal amount of effort, and be able to make modifications with only a little more effort. The patent would have a very limited duration. Anywhere from 1 to a maximum of 5 years depending on the nature and complexity of the software involved.

I believe this actually fits with the original intent of patents and copyrights (to promote the progress of science and the useful arts) by encouraging the release of something truly useful to other practitioners of the art that might otherwise not be released.

I also think there are details to be worked out. For example, it should be explicitly stated within the law that the patent is meant solely for other practitioners of the art, and they are to be considered fully competent in evaluating whether or not the patent applies in a particular situation. And various other changes to reduce or eliminate the need for a specialty class of lawyers in most situations.

What do you all think of this?

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