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Patently Absurd - Copyright Law Can Meet the Needs of Software Developers

87 points by binarybits 15y ago

jbooth 15y ago
This is the kind of thing that both sides of the aisle should line up behind.
losethos 15y ago
Lower the price of filing patents. Just send a timestamped email to a certified server, then go to court to attack or defend it and have it thrown-out if invalid. Beware of populism in desguise. This is class warfare. Don't be too impressed. Relax -- God is just. God says... C:\LoseThos\www.losethos.com\text\PLATO.TXT proverb says, is not included: for I would not have you ignorant that, in the present evil state of governments, whatever is saved and comes to good is saved by the power of God, as we may truly say. I quite assent, he replied. Then let me crave your assent also to a further observation. What are you going to say? Why, that all those mercenary individuals, whom the many call Sophists and whom they deem to be their adversaries, do, in fact, teach nothing but the opinion of the many, that i
HistoryInAction 15y ago
Nice article, but too bad you didn't bring up patent pledge: www.thepatentpledge.org
justinsb 15y ago
So DataTreasury fixed the way check clearing works, apparently pioneering a new digital approach instead of mailing around checks; implemented it; raised money and created 100 jobs; but couldn't get the banks to work with them. The banks then took the idea and implemented it themselves, driving DataTreasury out of business. Now their investors are getting some money back by licensing the patents to the banks, so they'll (hopefully) be willing to invest in innovative startups that have to work with incumbents again. Next time a small innovative company comes along, the banks are (hopefully) going to think twice before just deciding that they can easily re-implement their ideas. This doesn't seem to me like a particularly good example of the patent system gone wrong. To me, this looks like exactly what the patent system is supposed to be: protection for those with innovative concepts, so that they can have the opportunity to commercialize their inventions without incumbents simply cloning their hard work.
- LuxuryMode 15y ago
  I think you're missing the whole point. The DataTreasury example illustrates a fundamental problem with patents which is only exaggerated when it comes to software and software "processes." The problem is, as the article pointed out, that the patents are construed to be so broad that basically anyone can be said to be infringing it. To patent the idea itself of 'scanning checks with a device and sending it to a server' is pretty absurd. A copyright is more appropriate. If you copied the code, etc then you violate the copyright. But to say that anyone that implements this idea is in violation ... that's not encouraging innovation. It just encourages running to the patent office as fast as you can.
  - justinsb 15y ago
    I don't think it's fair to say that "anyone can be said to be infringing it". I think if you're a bank that's using scanned check imaging instead of mailing around checks, you're (likely) infringing. If you're building a social network, you won't be. In other words, the people who are (accused of) infringing are precisely those that were the target market for DataTreasury; there's also no accusation that the patents have been enforced against anyone other than the banks. The US banking system feels pretty backwards in terms of its reliance on checks where Europe has adopted electronic transfers. If the banks actually wanted to innovate here, they'd introduce a real electronic transfer system. The idea of scanning checks and sending around images (and presumably one day constructing virtual check images electronically and sending those) strikes me as remarkably backwards, but nonetheless a very clever solution to a real-world problem.
    - drivingmenuts 15y ago
      Maybe I missed part of the story, but didn't it say that banks implemented their own internal systems? If so, how does that violate a patent? If you build a better mousetrap and try to sell it, but I decide to build my own copy of the mousetrap for my own use, wouldn't that be non-infringing?
      - 15y ago
LuxuryMode 15y ago
Great read and great points.
WildUtah 15y ago
This is nice because the Republican Supreme Court justices voted 4-0-1 in favor of the maximum possible patenting of software in the Bilski case last year. Democrats were 4-0 against software patents. Scalia was the one deciding vote and refused to join either side's opinion on the actual subject of software patents. His decision is tentative and equivocal on the subject of software and business method patents. This article appears in the National Review, the thinkiest of the Republican news magazines. Perhaps it can help bring a little of the craziness among Republican judges back to reason on a subject central to our industry's future on these shores.
- tptacek 15y ago
  Generally speaking, even though it probably feels unnatural and even dumb to have to think this way, if you have to frame a comment in terms of "Republican" and "Democrat", you're probably hurting the discourse on HN. As it stands, I promise you there are many many conservative technologists who agree with your take on the patent system, but have wildly different takes on e.g. public sector unions and school choice. (I'm not one of them; I'm a dyed-in-the-wool liberal. Ironically, I'm actually less sold on how horrible patent litigation is than most of my conservative friends.) Speaking of judges --- and I thought your horse-race analysis was interesting, even if it made me queasy --- to the extent that there is really a such thing as a "Republican" or "Democrat" judge (as opposed to a liberal-leaning or conservative-leaning judge, or an "orthodox" or "reform-minded" judge) --- there are influential conservative judges who do not have knee-jerk pro-patent thoughts. What does Posner think about the patent situation?
petegrif 15y ago
This is a frighteningly naive article. Consider the following extract: "There are at least three reasons to exclude software from patentability. First, software development is an individual, creative activity, more akin to writing a novel than designing a jet engine...Second, software patents are especially prone to litigation...Finally, software patents are unnecessary because software is already eligible for copyright protection...As long as programmers write their own code from scratch, they can be confident they aren't infringing others' copyrights." The idea that software development is the sole province of the lone inventor is both wrong and irrelevant. The reason that our constitution facilitated patents was nothing to do with how many people invented something but rather with encouraging disclosure of the result. If we stipulate that software patents are frequently violated...so what? Without further analysis of why or whether specific improvements to the system would be helpful this is a dangling factoid - no more. Finally, the idea that copyright provides any kind of protection for software is so ludicrous the writer's naivety is laid bare. Copyright protects only the expression of an idea. In the case of a work of art such as a novel or painting the expression is critical to the work and copyright is a valuable protection. But if a programmer sits with original source code before him and rewrites it in another language thereby benefiting enormously from the original work but changing the expression completely they may indeed be programmers writing "their own code" but it certainly isn't "from scratch", and whilst he is right that "they can be confident they aren't infringing others" it is blindingly obvious that they have copied. Copyright is worthless if the expression doesn't matter and all that matters is functional equivalence. And guess what, users don't give a rat's ass how a program is expressed so long as it works.
- binarybits 15y ago
  Thanks for reading my article, and for sharing your perspective on it. However, I don't think you understand how copyright law applies to computer software. Translating a computer program line-for-line to another programming language doesn't avoid liability for copyright infringement. If it's "blindlingly obvious" that a copy was made, a court is going to say infringement has occurred. I recommend reading about clean room reverse engineering. That's what you have to do to copy software without infringing its copyright. It's doable, but in most cases it'll be more, not less, work than writing your own software from scratch.
6ren 15y ago
I agree with the article that broad patents are harmful - and if massive banks cannot get a fair outcome in the courts, what hope is there for the rest of us? I also agree with the implication that patenting "specific techniques" is beneficial. The history of the industrial revolution is littered with such innovation. It's only correlation, but the places with patent laws also had the most vigorous innovation. At that time, the newspapers were filled with new innovations and inventions, and people seemed to be falling over each other to invent something new, and to patent it. They thought patents promoted innovation - and the drafters of the US constitution thought so too. Personally, I would love to see new specific techniques being invented, rather than the next facebook, or the next webapp of something already done offline. The latter can be really useful and a great benefit to the world, but it doesn't stir my soul. I want new technology and entirely new ways of doing things! To make this more concrete: - I would say that while Card Case's geofencing payments (http://news.ycombinator.com/item?id=3189438 http://news.ycombinator.com/item?id=3189438) is a new and cool idea, it should not be patentable. - I think that Ken Thompson's specific mechanism for rapid regexp matching should be patentable (http://www.cs.princeton.edu/courses/archive/spr09/cos333/beautiful.html http://www.cs.princeton.edu/courses/archive/spr09/cos333/bea...) The idea of using regexp for search was new and cool (actually groundbreaking), but it's only the specific mechanism that should be patentable. Which is what Ken did.

87 points by binarybits 15y ago

This is the kind of thing that both sides of the aisle should line up behind.

Lower the price of filing patents. Just send a timestamped email to a certified server, then go to court to attack or defend it and have it thrown-out if invalid. Beware of populism in desguise. This is class warfare. Don't be too impressed. Relax -- God is just. God says... C:\LoseThos\www.losethos.com\text\PLATO.TXT proverb says, is not included: for I would not have you ignorant that, in the present evil state of governments, whatever is saved and comes to good is saved by the power of God, as we may truly say. I quite assent, he replied. Then let me crave your assent also to a further observation. What are you going to say? Why, that all those mercenary individuals, whom the many call Sophists and whom they deem to be their adversaries, do, in fact, teach nothing but the opinion of the many, that i

HistoryInAction 15y ago

Nice article, but too bad you didn't bring up patent pledge: www.thepatentpledge.org

justinsb 15y ago

So DataTreasury fixed the way check clearing works, apparently pioneering a new digital approach instead of mailing around checks; implemented it; raised money and created 100 jobs; but couldn't get the banks to work with them. The banks then took the idea and implemented it themselves, driving DataTreasury out of business. Now their investors are getting some money back by licensing the patents to the banks, so they'll (hopefully) be willing to invest in innovative startups that have to work with incumbents again. Next time a small innovative company comes along, the banks are (hopefully) going to think twice before just deciding that they can easily re-implement their ideas. This doesn't seem to me like a particularly good example of the patent system gone wrong. To me, this looks like exactly what the patent system is supposed to be: protection for those with innovative concepts, so that they can have the opportunity to commercialize their inventions without incumbents simply cloning their hard work.

LuxuryMode 15y ago
I think you're missing the whole point. The DataTreasury example illustrates a fundamental problem with patents which is only exaggerated when it comes to software and software "processes." The problem is, as the article pointed out, that the patents are construed to be so broad that basically anyone can be said to be infringing it. To patent the idea itself of 'scanning checks with a device and sending it to a server' is pretty absurd. A copyright is more appropriate. If you copied the code, etc then you violate the copyright. But to say that anyone that implements this idea is in violation ... that's not encouraging innovation. It just encourages running to the patent office as fast as you can.
- justinsb 15y ago
  I don't think it's fair to say that "anyone can be said to be infringing it". I think if you're a bank that's using scanned check imaging instead of mailing around checks, you're (likely) infringing. If you're building a social network, you won't be. In other words, the people who are (accused of) infringing are precisely those that were the target market for DataTreasury; there's also no accusation that the patents have been enforced against anyone other than the banks. The US banking system feels pretty backwards in terms of its reliance on checks where Europe has adopted electronic transfers. If the banks actually wanted to innovate here, they'd introduce a real electronic transfer system. The idea of scanning checks and sending around images (and presumably one day constructing virtual check images electronically and sending those) strikes me as remarkably backwards, but nonetheless a very clever solution to a real-world problem.
  - drivingmenuts 15y ago
    Maybe I missed part of the story, but didn't it say that banks implemented their own internal systems? If so, how does that violate a patent? If you build a better mousetrap and try to sell it, but I decide to build my own copy of the mousetrap for my own use, wouldn't that be non-infringing?
    - 15y ago

LuxuryMode 15y ago

Great read and great points.

WildUtah 15y ago

This is nice because the Republican Supreme Court justices voted 4-0-1 in favor of the maximum possible patenting of software in the Bilski case last year. Democrats were 4-0 against software patents. Scalia was the one deciding vote and refused to join either side's opinion on the actual subject of software patents. His decision is tentative and equivocal on the subject of software and business method patents. This article appears in the National Review, the thinkiest of the Republican news magazines. Perhaps it can help bring a little of the craziness among Republican judges back to reason on a subject central to our industry's future on these shores.

tptacek 15y ago
Generally speaking, even though it probably feels unnatural and even dumb to have to think this way, if you have to frame a comment in terms of "Republican" and "Democrat", you're probably hurting the discourse on HN. As it stands, I promise you there are many many conservative technologists who agree with your take on the patent system, but have wildly different takes on e.g. public sector unions and school choice. (I'm not one of them; I'm a dyed-in-the-wool liberal. Ironically, I'm actually less sold on how horrible patent litigation is than most of my conservative friends.) Speaking of judges --- and I thought your horse-race analysis was interesting, even if it made me queasy --- to the extent that there is really a such thing as a "Republican" or "Democrat" judge (as opposed to a liberal-leaning or conservative-leaning judge, or an "orthodox" or "reform-minded" judge) --- there are influential conservative judges who do not have knee-jerk pro-patent thoughts. What does Posner think about the patent situation?

petegrif 15y ago

This is a frighteningly naive article. Consider the following extract: "There are at least three reasons to exclude software from patentability. First, software development is an individual, creative activity, more akin to writing a novel than designing a jet engine...Second, software patents are especially prone to litigation...Finally, software patents are unnecessary because software is already eligible for copyright protection...As long as programmers write their own code from scratch, they can be confident they aren't infringing others' copyrights." The idea that software development is the sole province of the lone inventor is both wrong and irrelevant. The reason that our constitution facilitated patents was nothing to do with how many people invented something but rather with encouraging disclosure of the result. If we stipulate that software patents are frequently violated...so what? Without further analysis of why or whether specific improvements to the system would be helpful this is a dangling factoid - no more. Finally, the idea that copyright provides any kind of protection for software is so ludicrous the writer's naivety is laid bare. Copyright protects only the expression of an idea. In the case of a work of art such as a novel or painting the expression is critical to the work and copyright is a valuable protection. But if a programmer sits with original source code before him and rewrites it in another language thereby benefiting enormously from the original work but changing the expression completely they may indeed be programmers writing "their own code" but it certainly isn't "from scratch", and whilst he is right that "they can be confident they aren't infringing others" it is blindingly obvious that they have copied. Copyright is worthless if the expression doesn't matter and all that matters is functional equivalence. And guess what, users don't give a rat's ass how a program is expressed so long as it works.

binarybits 15y ago
Thanks for reading my article, and for sharing your perspective on it. However, I don't think you understand how copyright law applies to computer software. Translating a computer program line-for-line to another programming language doesn't avoid liability for copyright infringement. If it's "blindlingly obvious" that a copy was made, a court is going to say infringement has occurred. I recommend reading about clean room reverse engineering. That's what you have to do to copy software without infringing its copyright. It's doable, but in most cases it'll be more, not less, work than writing your own software from scratch.

6ren 15y ago

I agree with the article that broad patents are harmful - and if massive banks cannot get a fair outcome in the courts, what hope is there for the rest of us? I also agree with the implication that patenting "specific techniques" is beneficial. The history of the industrial revolution is littered with such innovation. It's only correlation, but the places with patent laws also had the most vigorous innovation. At that time, the newspapers were filled with new innovations and inventions, and people seemed to be falling over each other to invent something new, and to patent it. They thought patents promoted innovation - and the drafters of the US constitution thought so too. Personally, I would love to see new specific techniques being invented, rather than the next facebook, or the next webapp of something already done offline. The latter can be really useful and a great benefit to the world, but it doesn't stir my soul. I want new technology and entirely new ways of doing things! To make this more concrete: - I would say that while Card Case's geofencing payments (http://news.ycombinator.com/item?id=3189438 http://news.ycombinator.com/item?id=3189438) is a new and cool idea, it should not be patentable. - I think that Ken Thompson's specific mechanism for rapid regexp matching should be patentable (http://www.cs.princeton.edu/courses/archive/spr09/cos333/beautiful.html http://www.cs.princeton.edu/courses/archive/spr09/cos333/bea...) The idea of using regexp for search was new and cool (actually groundbreaking), but it's only the specific mechanism that should be patentable. Which is what Ken did.