Paper 3: Software Patents
Due: Friday, May 3 Comp 317/417,
Dordal
Topic option 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.
Are there features of software patents that make them a special case in
terms of patentability? The purpose of patents is to encourage innovation
and investment in innovation, for social progress. Does this principle apply
to softwareas well as machinery and pharmaceuticals?
This position is compatible with both the idea that software should
be patentable, and also with the idea that nothing should be
patentable; the latter argument is made in Michele Boldrin and David
Levine's The
Case Against Patents, and their longer work Against
Intellectual Monopoly. Argue your position, and come to some sort of
conclusion.
You can argue based on general principles, or on the utility of patents to
specific industries.
One facet of the question is whether software patents, on the whole, are of
benefit to society; if they are not, and other patents are, then
you've established a distinction. Do
software patents foster innovation, leading to more software ideas for
everyone? For the purposes of patent law, should software be included?
Here are a few justifications that have been advanced for considering
software patents to be fundamentally different:
- Software is often about abstraction, and abstract ideas
- Software has greater generality than physical machines
- Algorithms are fundamentally mathematical facts rather than inventions
- Many software "inventions" are straightforward implementations of
broad ideas
- Often the "creativity" in software is simply realizing that, yes,
there is a market for the product
Others have argued that the only specialness of software patents is that the
patent office allegedly has difficulty conducting patent examinations for
software. Still others argue that it is the existence of open source that
makes software patents unique.
In the I4I v Microsoft case, an obscure patent about a data structure for
holding XML tags became very expensive for Microsoft, once the data
structure in question was interpreted so broadly as to cover any method of
manipulating XML structure separately from data. Does this represent a
fundamental problem with the use of abstraction (ie in describing data
structures) in computer science? Or was this just a quirk of the judicial
system?
The Supreme Court decided the Bilski
case in June 2010 and agreed that some abstract ideas are not patentable.
Does this affect software patents?
Yet another way to address the two questions above is that, yes, Graham
was right, but that software should be subject to different
patent rules. If this is what you feel, propose different rules and argue
for them. If your main argument is that software is indeed 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.
Here are a few more points to think about if you need suggestions. You
don't have to address them all (you don't have to address any of
them):
- 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
- Whether software is "too abstract" to be patentable in general
(Bilski's process was held to be too abstract)
- Many claimed software inventions are straightforward implementations
using existing components
Topic option 2: Are computer-crime rules clear enough?
When someone steals a piece of property, there is seldom a question whether
a crime has been committed. But Randall Schwartz clearly did not think he
did anything wrong, and most disinterested observers in the
system-administration community agreed. Terry Childs and Julie Amero, for
that matter, probably did not either. Aaron Swartz certainly knew he was
bypassing something, though some have claimed he didn't have
reason to know it might be criminal.
The problem with the CFAA is that it criminalizes unauthorized access. This
makes sense from one perspective, but there is quite a bit of ambiguity as
to what constitutes "unauthorized", even ignoring the Nosal
decision that suggests that no actions on the computer you have been
issued can be unauthorized.
For example, the CFAA, in theory, criminalizes creating a second Facebook
account, or use of Google search by minors. These uses are explicitly
"unauthorized" by the sites' Terms of Service.
When Bidders' Edge got in trouble with E-Bay for collecting data about E-Bay
auctions, it was because they had to create E-Bay accounts to get access to
the system.
Here is the central question: is a law against "unauthorized access" a good
idea, or must there be some other standard as well, and if so, what? Some
possibilities are
- actual harm (problem: this is notoriously hard to evaluate)
- malicious intent (the government would have trouble proving that for
most of our examples here)
- ???
Another way to summarize this question is simply "is the CFAA too broad?"
Your paper (either topic) will be graded primarily on organization (that is,
how you lay out your sequence of paragraphs), focus (that is, whether you
stick to the topic), and the nature and completeness of your arguments.
It is essential that all material
from other sources be enclosed in quotation marks (or set off as a block
quote), and preferably with a citation to the original source as well.
Expected length: 3-5 pages (800+ words)