The Software Patent Racket: What do we do?

This is an essay addressed to my colleagues, those who make software for fun and profit and those who enjoy all the benefits technology brings to our lives. A recent Forbes article contained an amazingly illustrative anecdote revealing the corruption inherent in software patents, a dialogue between IBM lawyers visiting the then small company Sun Microsystems:

An awkward silence ensued. The blue suits did not even confer among themselves. They just sat there, stonelike. Finally, the chief suit responded. “OK,” he said, “maybe you don’t infringe these seven patents. But we have 10,000 U.S. patents. Do you really want us to go back to Armonk [IBM headquarters in New York] and find seven patents you do infringe? Or do you want to make this easy and just pay us $20 million?” After a modest bit of negotiation, Sun cut IBM a check, and the blue suits went to the next company on their hit list.

This is practically a scene from every mob movie and crime drama ever produced, except the numbers usually aren’t this big. I feel this anecdote speaks for itself and is a call to action for geeks like me who will be next on the current big boy’s hitlist, those of us who develop and distribute open source software, those of us who create and innovate in small businesses or consulting and those of us who feel blessed to live in a time where we can make a living with our minds. This is a real threat to our livelihoods, because it shows that the status quo has finally started understanding our turbulent times and are actively using their muscle to “protect” our neighborhood. So what do we do? My personal answer to this question is rooted in pop culture.

I have been extorted with threats of physical violence in my past, but in that case the balance of power was much less complicated than the situation we collectively find ourselves in, so I reach for the source of understanding I am most familiar with: pop culture. Whether its The Wire, the Godfather series, Sons of Anarchy, Brotherhood, Carlito’s Way, or any number of other criminal dramas the pattern is always the same. The “bad guys” use their power (money, guns or muscle) to control and extort members of their community for their own profit. Inevitably some of the small businesses fight back in desperation and are wiped out, other powers compete with the central characters and either destroy and replace them or negotiate power deals to maintain the status quo within some “reasonable” bounds. This always goes to show that the power wielded by the gangsters is real, and not playing by their rules has real consequences.

So if we have to play by their rules, how do we fight back? We don’t have the money, lawyers or violent inclinations to revolt, and even the mighty Google is besieged on all sides. There is one weapon that the gangsters have no defense against, the power behind the pen being mightier than the sword: pubic opinion. In all of these dramas, and in history too, the actions and crimes perpetrated by gangsters are tempered by public opinion. There are unspoken as well as spoken rules, codes of “honor” keeping thugs in line so that their actions do not bring attention and scrutiny on their organizations. A critical mass of public hatred for an organization is often the only way to remove their power and influence.

Why is this so? I’m no psychologist and I hope other’s will chime in, but it makes sense that a government of men (rather than laws) is vulnerable to the humanity of it’s rulers. Those humans have pride, ego, vanity and morals. They do not do unscrupulous deeds out of some sick pleasure, but rather to further their goals inside the world they have created for themselves with the resources at their disposal. We need to appeal to those human tendencies, or at the very least target their weaknesses.

I propose a new crime drama, one who’s context is the 21st century, the information age. The humanity of our generation has not changed, only the tools and environments in which we find ourselves. How do we convince people who care nothing about software that there is a threat to their way of life? By making them care about the characters who compose the story. How many people such as myself will never be the victim of small town violence yet eat up any compelling power drama? How thankful am I that the rule of law has progressed so I can feel secure in my station most places I go, and how thankful will the next generation be that we shined light on a mounting story of human greed and freed technological innovation from it’s shackles.

Let’s make them care, let’s tell a story.


6 thoughts on “The Software Patent Racket: What do we do?

  1. Martin Lindelöf

    nice post, it’s never patents that propel human experience with technology forwards, patents only acts as a reactive force. Keeping’ us from reaching terminal velocity.

  2. Billy

    >even the mighty Google is besieged on all sides

    Let’s not pretend they’re a victim. Put an end to the myth that big companies like Google, Microsoft, and Apple merely file “defensive” patents. If they’re so bothered by the system and merely waiting patiently for it to end, then why aren’t they lobbying against software patents?

    Because they’re happy to continue to cross-license. Because they’re powerful enough, with a sizable racket of their own, that they can keep the other ‘families’ at bay. But that’s not passive and “defensive” at all; they’re extracting huge economic advantage from the patent system by trading portfolios and fending off lawsuits, and they’d rather fight the arms race of building their own portfolio to keep their market position than change the law and level the playing field.

    Microsoft’s actually lobbying to make it EASIER to register patents (and, of course, IBM is there, who owns ~30% of all software patents)

    Why don’t I see Google and Apple in the “oppose” column? Why aren’t they using their billions to fix this system if they hate it so?

  3. Dad

    I think the best answer is to make software patents not last so long. When one had to build an entire factory to make one’s widget and then had to physically move it to all the stores and then sell them, well it made more sense for patents to last as long as they do. When I can implement and SHIP my patented thing to customers in a week (or less!), well, 3 to 5 years seems sufficient. This then provides the inventor with a bit of running room (head start) to get the advantage of invention without squashing the industry.

    What do you think?

  4. Nathan

    Fundamentally I think you need to develop more than just a pragmatic case. Of course innovations would happen faster lacking a patent regime, but that is rarely enough to convince most people.

    At the core of the patent debate is really whether or not ideas, non-physical bits of information, can actually be property. If we examine the justification for property rights: rivaly, the fact that a physical chair can not be used simultaneously with someone else, and excludability, the fact that it is easy to prevent someone from using said chair, it is clear that ideas are the exact opposite of physical property. They can be used simultaneously with others, and preventing copying requires a virtual police state implementing what amounts to thought crime.

  5. enj Post author

    @Billy I wasn’t actually excusing Google, rather my point was that even the ‘Do No Evil’ company can’t be counted on to fight this battle.

    @Dad I would take your point even further, and say that patents are just not necessary for software. I can develop a useful piece of software in a weekend, then rewrite it with completely different tech and algorithms the next weekend. As an individual developer I don’t need patents to protect my innovation, because the hard part of making money off software is not writing the code itself. For large companies, we see evidence that it’s an expensive defensive arms race which isn’t really helping anyone innovate anything.

    @Nathan There is a lot that goes into it for sure. I have to be careful because of my biased position as a small developer with mostly open source experience. I agree with your analysis of the fundamentals, and that it is ultimately fruitless to try and enforce physical laws on a non-physical space.

  6. Alex

    What a state the software industry is in now?

    When the corporate entities aren’t crushing small enterprise with patent law they are sending jobs to Asia by the thousand.

    Being in my mid-40’s I’ve watched the hope turn to sour milk in this industry.

    Lets face it we want it kind of both ways. If you write and sell some product you want to get paid for it; not for everyone to copy it and leave you in poverty. Yet we don’t want the software industry to become parasitical and litigious with stern restrictions on the use of libraries and algorithms.

    Where to now?

    I don’t have the answers but I think the future was recently mapped out by the android/Google/htc/Apple/Microsoft model where smaller companies, by becoming exclusive clients of a platform get protection (in the legal sense) from other litigious parties.

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