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):
- Incentives to innovation and development
- Litigation costs as a negative social side-effect
- Inventor's rights
- Public's rights to shared ideas
- Conflicts between patented software and open source
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
- automatic file deletion
- backdoor access to your machine
- bandwidth-consuming advertising
- sending of personal information to other parties without your knowledge
- inclusion of personal information in files created with the software
- support for browser cookies
- installation of unfriendly drivers
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.