Yes, Patents Are A Restriction On Freedom
from the does-that-apply-to-all-such-monopolies? dept
Tim Lee points us to an interesting blog post from a patent lawyer who tries to parse out why software patents feel so offensive to some. The lawyer, Steve Lundberg, who tends to be a software patent supporter (and whose blog posts I’ve strongly disagreed with in the past) does make some interesting points. Lee highlights the following:
There is one more factor that makes software very unique — because a single person can successfully develop and distribute software applications, the experience with the system is highly personalized for a large number of developers. Software patents, in a sense, and almost unlike all other technology areas, restrict what feels like our treasured personal freedom, and understandably thus generate a visceral reaction to those so affected. In almost all other mainstream industries, inventors do not act as manufacturers, but are employed by them. This decouples and depersonalizes infringement concerns from the inventor/developer. In actual practice, it is extremely rare that a small developer would ever be sued for infringement by any entity other than a direct competitor. In this instance, the developer would be able to quite easily see it coming, but there is a possibility that they could be sued and not see it coming. So, I can understand why smaller developers would feel personally threatened by software patents. And even software developers in large companies often still fancy themselves as independent souls who, in their dreams, find fame and fortune founding a start-up and striking it rich. So, they too, often can take umbrage as much as an independent developer.
Lee responds to this paragraph by almost totally agreeing with a couple of important caveats. First, he notes that Lundberg greatly underestimates how many small and indie developers are hit by patent lawsuits these days. Actually, I’d say even that massively underestimates the problem, because it doesn’t take into account all of those who are never sued, but who are hit with threats that can be tremendously damaging to small companies. Lee’s other point is also important:
the part about patents restricting “what feels like” freedom. There’s no “feels like” about it. Patents are a restriction on the treasured personal freedom of programmers, which is why so many of us are upset about them.
I think that’s true, but again, I’d take it even further. I’m not sure I agree with Lundberg’s assertion that this is somehow unique to software developers. I think it’s absolutely true that we see more software developers than other patent-intensive fields, and thus we see more such activity, but any use of patents (or copyrights for that matter) are restrictions on the freedom of others by definition. Patents and copyrights are rights to exclude. That’s their fundamental property. They are a government granted tool with which the holder can restrict the freedoms of others. There is a calculus involved, over whether or not that restriction on freedom is worth it in the long run. Does it incentivize more inventiveness? Does the benefit outweigh the restriction? That’s what we’re supposed to be determining.
The problem isn’t just that indie developers feel super independent and blindsided by patent disputes, but, rather that they don’t see the patents helping in any way, and thus the restriction on freedom is way too costly. A big part of the problem, of course, is that thanks (in large part) to regulatory capture, those who benefit most from patents (and copyrights) have done their best to tilt the law over time such that those key questions are never asked. They’ve created a world in which we are told to first assume that of course such restrictions create more incentives for invention and that of course the benefits outweigh the restrictions. People are yelled at for even suggesting otherwise, and it’s rare to find a serious discussion on those topics. Instead, maybe questions are allowed at the margins about a specific part of the law that is seen as going too far. But the larger questions are never asked.
But for the people who live these things day in and day out, they know intuitively that the restrictions on their own freedoms are much much more problematic than any benefits given from patent law. And that is why they’re upset. It’s not just that the development and the infringement concerns are linked, but that the overall restrictions on freedom are just not seen to be worth it.