But What Are Software Patents Good For?
from the still-waiting? dept
Tim Lee, over at the Technology Liberation Front is breaking down a recent report defending software patents from the Progress & Freedom Foundation — a think tank which claims to be libertarian, but is consistently a huge supporter of granting government-granted monopolies on intellectual property. They were huge supporters of the DMCA, and keep trying to make it even worse. Tim raises an important question about software patents that should actually apply to just about any intellectual property issue, but which is rarely asked: what are software patents good for? He notes that all of the defenses for software patents actually are attempts at debunking the arguments against software patents, rather than explaining why software patents are necessary.
This is a key point that some of us have tried to raise before. The purpose of government intervention and regulation should be to solve a situation where the market has somehow failed — and the regulation is designed to solve that market failure. It’s hard to see what market failure software patents are solving. The industry did incredibly well for many years without patenting software, and it was only recently that, as the federal courts clarified what was and was not patentable, that patent attorneys rushed to have companies patent their software. The market itself seemed to be providing plenty of incentives to produce software products. The richest man in the world became that rich selling software. It’s hard to see how there’s any kind of market failure that would need the government to support monopolies to create incentives for more people to write software. This is important whenever there’s a discussion over intellectual property rights. Go back to the original purpose of intellectual property: to encourage new innovations where the market fails to provide those incentives.
There’s a second point that Tim makes that is also very much worth highlighting. One of the keys to creating incentives for continuous innovation is to have a competitive market. In fact, it’s pretty well accepted that believers in the free market support competitive market places. If they’re not competitive, that’s often a sign of market failure. Well, it seems that the folks at PFF have flipped the equation — which is why it’s difficult to see how they can claim that they’re libertarian. They say that software patents are necessary to prevent “copying,” but as Tim notes, in any other business “copying” is known as “competition.” So, the supposedly free market supporters at PFF are basically saying they don’t want a free market or competition in software — which goes against everything they claim they stand for.