I thank Solveig and Greg for their thoughtful comments on my software patents op-ed. A few quick responses. First, from Greg:
based on journal literature, industry gross sales, published books, and more consumer crap to fill garbage dumps with, there is ZERO evidence that technology is being stifled…
I have trouble putting much stock into studies that try to find a statistical correlation between software patents and innovation. It’s extremely difficult to come up with good metric for the innovativeness of an industry given that, by definition, innovation happens when you do something people don’t expect. Moreover, it’s not clear to me what the appropriate baseline should be in these studies. Even if you came up with an objective measure of how innovative the software industry is at any given time, I don’t know how you’d figure out what the relevant counterfactual is. You might be able to learn something via cross-country comparisons, but even these comparisons are pretty dubious given the globalized nature of the software industry.
But while macro-level statistics aren’t very illuminating, I think the anecdotal evidence is overwhelming. I think Greg’s rejoinder here kind of proves my point:
His main example is Vonage’s loss to Verizon, which a) won’t lead to any technology stifling, and b) is more an example of hiring incompetent litigators (the Verizon patents are pure crap if you hire a good searcher who hands his results off to good litigators).
If Verizon wins on appeal and drives Vonage out of business, I don’t see how you can argue that no technology has been stifled. Not only will that cause Vonage’s technology to no longer be available to consumers, but it will also send a powerful message to startups that they’d better spend more money on lawyers and less money on engineers. It seems to me that a legal system that makes success in the marketplace a function of how smart your lawyers are, as opposed to how smart your engineers are, is a legal system that is stifling innovation almost by definition. I mean, this is how libertarians view almost any other kind of lawyers, right? If companies have to spend more time defending themselves against frivolous product liability suits, or they have to hire more lawyers to represent them before regulatory bodies, it’s obvious that’s bad for the economy. Why are patent lawyers any different?
Finally, Greg says that copyright law has similar problems:
You think applying the Altai test is simple (other than applying the Altai test to say nothing non-literal about software is copyrightable because it can’t survice [sic] abstraction and filtration)? Have you read the endless law review articles pointing out the contradictory nonsense of software copyright caselaw, which are the rules that people have to deal with to protect their software with copyright? Do you read?
Obviously copyright has its complexities too, but these complexities exist only in marginal cases. Copyright law is very clear on two points: First, making exact copies of a piece of software is copyright infringement. And second, independently invented programs do not infringe anyone’s copyright. These two principles ensure on the one hand that companies are protected from the most blatant forms of piracy, and on the other hand that other programmers don’t have to worry about inadvertently infringing someone else’s copyright. Only in cases where one company attempts to clone the interface of another company’s software does copyright law become messy.
To put it in concrete terms: no one has claimed that Vonage’s VoIP technology is in any way based on Verizon’s designs, yet that hasn’t saved them from Verizon’s lawsuit. This could never happen under copyright law. Under copyright law, Verizon would have to make the case that Vonage’s VoIP technology was in some way based on Verizon’s technology. If Vonage can demonstrate that it developed it independently, then it isn’t guilty of copyright infringement, regardless of how similar their products happen to be.
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