A Comment About Intellectual Property

Although this post may be slightly technical for some people not overly familiar with technology and patents, I think it still serves the purpose of enlightening the subjects of rights and property and why they are important. We need to understand legitimate rights better and the implications of violating them, even when it seems to be for a good purpose. Hopefully this helps a little in bringing these issues to light.

My employer uses a social network for companies, called Yammer, where all of us employees can interact and share links and discuss topics within our company. Since we are a software development company, the issue of patents comes up quite a bit and there are some major patent disputes going on in the technology world right now. It seems like every major technology company is suing and counter-suing one another. It’s a big mess and it has led a lot of people to question: What’s wrong with our system that would allow this kind of thing to happen?

Recently someone shared a link to an article titled: Should software be patentable? That’s the wrong question to ask. The author of that article contends that since hardware processes are patentable, and nowadays more and more processes are implemented with software instead of hardware, then software should be patentable too. The ensuing discussion within my company revolved around speculating at where patents went wrong. In response I made the following comment:

Looking at the comments [from the article], I was happy to see others ask better questions about patents in general. Patents exist because they attempt to “protect” so called “Intellectual Property”, which can be an idea that is implemented via hardware or software. So I think the author is right in that sense. The real question to me is “Why do property rights exist?” Property rights exist because of scarcity. Property rights assign ownership of limited resources to reduce conflict which helps deal with the scarcity. This make sense because we don’t (yet?) have a way to copy physical objects w/o using more limited resources.

What intellectual property attempts to do (via patents) is treat non-limited resources (ideas, knowledge, etc.) as if they were scarce. More accurately, it attempts to artificially CREATE scarcity for intellectual property by assigning ownership of ideas so that less people can act on those ideas. It is a government-granted monopoly for that idea, process, what-have-you. To me, this is where things went awry.

For practical examples of how innovation is NOT stifled by lack of patents, look at the roots of the software industry. We’re Unicon for crying out loud, Unix is a great example :) Also see the movie “Pirates of Silicon Valley” for how Apple and Microsoft got started and how critical blatant software-copying was to their success. That movie also illustrates the fact that even though competitors copy and “pirate” software, the result they produce is not the same. They copy ideas and apply them in different ways and attempt to make them better. We can also look to current industries that don’t have patent protection. This great TED talk does that well:

“Lessons from the Fashion Industry”

Also, as I posted last month, Stephan Kinsella (a patent lawyer) is great at explaining what I mentioned above and discusses the current patent disputes going on w/ Apple/Microsoft/et al, in this lecture: “Intellectual Property and Economic Development

3 Responses to “A Comment About Intellectual Property”

  1. Brad Westfall Says:

    Nice Jeremy, as you know I detest copyrighting anything software related. Its impossible to make successful software without using preexisting design patters that we ourselves did not create. What gives me the right to “own” my assembly of others creations. It is the openness of the web and the willingness of the good innovators to share information freely that has been the driving factor for its growth.

  2. Jeremy Says:

    Thanks for commenting Brad. I don’t know if you watched that video above about the Fashion Industry but it has many parallels to the software industry as well. With a lack of patents, innovation and creativity flourish. That’s not to say that in areas where patents exist there is no innovation or creativity. It’s just that it is stifled and all you see is what DID come out of the patent but you never see all the things that NEVER CAME ABOUT because government granted a monopoly on that idea and so no one else could use it to make something different. Unfortunately, I don’t see the situation getting any better any time soon. That would require putting faith in politicians to do the right thing and that’s a quick way to get depressed :)

  3. Brad Westfall Says:

    I did watch the video, it was great. Unfortunately the individuals who grant patents and rule on them in courts have a severe misunderstanding of technology and software in particular. We are currently fighting a patent lawsuit where the two individuals suing us happen to be two lawyers who go around buying patents in technology and then their primary income is to sue companies who they think are violating the patent. It turns out that it would cost us hundreds of thousands of dollars to fight them and if we were to win, we cannot counter-sue them for the fees. However, they are nice enough to settle for about 100k so we dont have to go through the process :) So basically its a huge scam. And the lawyers and judges hardly even understand the ambiguous literature of the patent in the first place. But why risk fighting with so much to lose. From what I understand, the patent is about how we are matching records in our MySQL database. Last I heard, MySQL was open source with thousands of articles on the web about best practices for matching data. Certainly something that these two imbeciles should not have a patent for

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