Why software patents are evil

Yahoo's action against Facebook reminds us why most open source developers hate software patents

Mark Cuban is no fool. A tech billionaire, the no-nonsense owner of the Dallas Mavericks is just the sort of person you'd expect to value software patents. So the title of his blog post this Tuesday, "I hope Yahoo crushes Facebook in its patent suit," may not look out of place to you.

But wait -- it turns out this is a fake-out. He hates software patents and wants Yahoo to cause so much trouble that Congress has no choice but to finally engage in patent reform:

Rather than originating in Congress, it's going to take a consumer uprising to cause change. What better way to create a consumer uprising than to financially cripple and possibly put out of business the largest social network on the planet?

[ Simon Phipps points out the legal advantages -- and exceptions -- of OIN's latest move in "Linux gets a bigger shield against patent attacks." | InfoWorld's Robert X. Cringely smells the fading Web portal's desperation in "Yahoo vs. Facebook: Let patent insanity reign." | Stay up to date and subscribe to InfoWorld's Open Source newsletter. ]

Patents may work in other industries, where the cost of innovation is so high that a temporary, state-sanctioned monopoly provides just enough time to gain a return on the investment. But that investment-return ratio has a completely different value for software. It turns out that software patents have little bearing on encouraging innovation. In an article posted on Slate, Timothy Lee puts it like this:

Copyright infringement occurs only when someone deliberately copies someone else's work. But a programmer can infringe someone else's patent by accident, simply by creating a product with similar features.

While some business leaders bluster about how a company they are attacking has "stolen their patented ideas," in software that is almost never the case. Programming is all about solving problems, and since necessity is the mother of invention, most programmers invent things from scratch every day, without any need to use other people's patent filings to do so. That's just as well, because as Lee goes on to say:

Given that a handful of lines of code can lead to patent infringement, the amount of legal research required to compare every line of a computer program against every active software patent is astronomical.

No programmer I've ever met refers to software patents, for two reasons. First, they aren't written for programmers to learn from -- they're written for patent lawyers to sue against. You'll find software patent filings contain no sample code and few technical descriptions. When I worked at IBM, I asked a patent lawyer at the company what was needed to file a patent. I was told "a rough idea -- we can fill in the details for you -- and then all the ways you can think of by which we could tell if someone else is using that idea."

The second reason programmers never refer to software patents is that they're told never to do so. Patent law allows for triple damages if patent infringement is found to be willful. Looking at patents is as good a proof of willfulness as you can get. Every company I've ever visited has told its programmers to stay well clear of reading patents.

Anticompetitive usage

The effect of both of these is to invert the intent of the Copyright Clause of the U. S. Constitution, which allows the granting of copyrights and patents "to promote the Progress of Science and useful Arts." Rather than promoting progress, software patents actually provide a way to inhibit progress by equipping companies with a powerful, unavoidable stealth weapon with which to frustrate their competitors and chill competitive innovation. Consider some examples:

Software patents are thus bad news for most innovators in the software industry. The Electronic Frontier Foundation (EFF) has an excellent summary illustration of the problem.

I'm reminded of a case back in my days at Sun. Kodak was first an early investor in Sun, then a customer. But goodwill vaporized in 2004 when Kodak sued Sun for patent infringement. It wasn't just Sun. With its business starting to fail in the heat of competition from a digital camera market it had foreseen but failed to exploit, Kodak used a patent obtained from Wang to pursue every maker of object-oriented technology in the computer industry. Kodak forced out-of-court settlements in most cases (including, eventually, Sun), but the money did it no good.

Once a declining company becomes a patent troll, it's a sign that the ability of individuals to use human values to overcome reptilian corporate instincts has ended. Kodak lost any credibility with technology peers, and to my eyes at least the rest of its slide into chapter 11 was inevitable. So too with Yahoo, which is the Kodak of social media.

Software industry players build defenses against all this. They construct formidable patent shields, create patent pools like OIN, buy patent portfolios from others as Google has been doing, and more. Of course, the temptation to turn to the dark side and make money from what was once a defense is strong. But most companies just use their portfolios as a defensive measure.

Open source and patents

So what about open source communities? Cuban's hatred of software patents is common in the open source community, too. It's not that open source projects are opposed to innovation -- indeed, we're in a golden age of open source innovation. The problem is that open source software is defenseless against the anticompetitive abuse of patents.

There's often no entity to protect open source programmers, who come together to synchronize their individual motivations in seeing the software exist into a collaborative community, using the liberties guaranteed by open source licenses as the lubricant. When there is an entity, it's typically a nonprofit that's incapable of mounting a patent defense -- no money, no patent portfolio. The public nature of their work offers a small prior-art defence, but otherwise there's no way that the unjust-but-legal chilling of competition could be deflected if a corporation chose to attack.

Fortunately it rarely happens, but the potential persists. What can a community do? A stalwart of open source software, the Debian community, recently issued a policy statement on software patents for its members. In summary, it says to shun software patents, to reject attempts to force you to license them if you can, to avoid allowing fear of them to shape your actions as you can never truly know if they are applicable, and to use attorney-client privilege to protect you if you are ever concerned about them. Wise advice.

The only real protection is the goal Cuban is seeking: patent reform. I hope his gloomy diagnosis is wrong -- that it will take a commercial catastrophe to overcome the power of special interests in Washington and bring about workable reform. But as the EFF explains, the patent system is broken and reform is the only solution. We need it, before the Kodak of cloud computing comes along.

This article, "Why software patents are evil," was originally published at InfoWorld.com. Read more of the Open Sources blog and follow the latest developments in open source at InfoWorld.com. For the latest business technology news, follow InfoWorld.com on Twitter.

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