Paper 3: Patents/Crime

Due: Dec 10, 2009                    Comp 317/417, Dordal

Choose one of the following two topics:

1. Are software patents a special case?

Paul Graham wrote

There's nothing special about physical [machines] that should make them patentable, and the software equivalent not.

Argue for or against this position, and come to some sort of conclusion.

The purpose of patents is to encourage innovation and investment in innovation, for social progress. Does this principle apply to software as well as machinery? Are software patents, on the whole, of benefit to society? Do they foster innovation, leading to more software ideas for everyone? For the purposes of patent law, should software be included?

Or is it true that software is fundamentally different? Perhaps because of its abstraction, or greater generality, or its mathematical nature, is software a special case? Or is it a special case simply because the patent system allegedly does not work well for software? Or even because of open source?

In the Bilski decision, the Federal Circuit indicated that something should be patentable only if it involves a "machine or transformation". Is this a good standard? Does it rule out all software patents? Most? Some?

There's a potential grey area in concluding that software should be subject to different patent rules, but still should basically be patentable. Handle this as gracefully as you can. If your main argument is that software is a special case, you may either make the case that it is so different that patents should not apply, or make the weaker argument that special patent rules should apply. If you are arguing that software is not a special case, you do not necessarily have to argue that all the rules should be the same.

Discuss both sides, and come to a conclusion. Your conclusion should either support one side or the other (perhaps with qualifications), or else it should outline some sort of "compromise" position.

If you are arguing against patents generally, please make that clear (in that case, you are probably not arguing that software is different, though you might argue that the case against software patents is stronger). If you argue against all patents, you should be sure you understand your argument's implications for, say, the pharmaceuticals industry.

Keep in mind the following points (though you don't have to address them all):


2. Rules for Software

When you use a software package, it seems reasonable to suppose that you are entitled to something that isn't "malware" or "spyware".

What, exactly, does this mean? Are there specific rights that you, as a user, have? Are there specific obligations the vendor has, even if they are not charging you? Are there rights or obligations that it should not be possible to waive or alter through a "clickwrap" agreement?

Note that most home users today don't buy much software directly; Windows comes bundled with the machine, sometimes other things are bundled as well, and then there's a whole lot of freeware. (Many home users do buy Microsoft Office, and games are still almost universally sold.) Does whether you paid for the software change your expectations?

Negative software features might include
Some other examples can be found at stopbadware.org. You might feel that different standards apply to free versus nonfree software; if so, spell them out clearly.

One classic example of surreptitious installation is the Sony "rootkit", but that arose with music CDs that users did not perceive as containing executable software at all. You can include that, but at least some focus should be on software that the user understands to be software.

This is a good example of an issue that is relatively undecided legally, and yet there are very specific legal and societal expectations in place when you buy food, or toasters, or automobiles; in these cases the manufacturer is most definitely not permitted to claim caveat emptor (buyer beware). However, in these latter cases the object is also definitely not free.

Richard Stallman has written an article, Can you trust your computer.

One tricky issue is that of consent: should you be allowed to consent to, say, the sharing of personal information at the end of a long click-wrap agreement? If not, then how would you use free tax-preparation software (which obviously ends by sharing your information with the IRS)? If so, then what if you fail to notice the fine print? Car manufacturers, by comparison, can not require you to waive basic safety features in the fine print.