Paper 3: Software Patents

Due: Friday, June 28          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:
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):


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 Randal 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

Another way to summarize this question is simply "Is the CFAA too broad? If not, why? If so, how might it be fixed?"



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)