Tom Lee on Software Patents

by on May 15, 2008 · 10 comments

Matt Yglesias was kind enough to link to my write-up of Math You Can’t Use. Matt’s commenters made some not-very-persuasive counter-arguments, which prompted Tom Lee to pen a nice re-statement of the basic argument against software patents:

the last few years have demonstrated that for many areas of creative endeavor we have massively overestimated the compensation that must be provided in order for society to continue enjoying plentiful ideas. The success of the open source movement and the continued thriving of the music industry, for example, clearly show that we, the greedy masses, can help ourselves to considerably more free intellectual output than we’d thought without endangering the whole system. We’ll all enjoy the benefits — as well as the savings to be had by not spending as many of our resources on enforcing IP laws.

Of course, how far this can be pushed is up for debate. Other fields — publishing, filmmaking, drug discovery — may not be as adaptable. In some cases I’m optimistic that the associated capital costs have or will fall to the point where creator compensation can be safely diminished in order to benefit us all. But now we’re getting into the weeds. Clearly there ought to be a negotiation around each IP-producing field to determine whether the benefits provided by restricting the use of its output outweigh the value lost by imposing that restriction.

And for software patents, the situation is extraordinarily clear: it’s very hard to find a software author who thinks they have contributed anything useful to the process of innovation, and most think they have exerted a significant retarding effect. If the ideas produced and protected under the software patent system were the sorts of novel and valuable contributions that the system is designed to encourage, one might expect to hear about them.

One of the remarkable things about the software industry is that it’s awfully hard to find smart programmers who are strong supporters of software patents. You’ll find a good number who haven’t given the subject a lot of thought, but the vast majority of those who have given the subject a lot of thought are unanimous in their opposition.

Part of the problem is a very basic lack of knowledge. The vast majority of voters—hell, the vast majority of educated, politically savvy voters like Matt’s readers—can barely explain the difference between copyrights and patents, to say nothing of making fine distinctions among types of patents. And meanwhile, there’s a wealthy and growing patent bar with a vested interest in more lenient patent rules. And some large software companies that have amassed patent arsenals and are eager to derive licensing revenues from them. The result is that it’s an uphill battle to even explain what the issue is and why it matters, to say nothing of building real political momentum for reform.

This is part of the reason that I think our one hope of serious reform is the courts. The Federal Circuit has so brazenly trampled on Supreme Court precedent that I think the Supremes may feel compelled to defend their institutional prerogatives, despite the lopsided interest group pressures. And the Supreme Court is much better situated than Congress to delve into complex issues and understand the point of principle involved. The Supreme Court is also much more responsive to elite opinion, and we have more chance of swaying a few thousand elite opinion makers than we do of educating the general public. This is one of the reasons I think Ben Klemens’s End Software Patents coalition is so important, and why I think their courts-focused strategy is probably the right one. It’s still going to be an uphill battle to get the Supreme Court to straighten out the patent mess, but our odds there are a lot better than in Congress.

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