Paper 3: Software Patents / Computer Crime

Comp 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 in general is to encourage innovation and investment in innovation, for social progress. Does this actually work for software patents?

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 have 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?

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: What should the rules be for computer crime?

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 many disinterested observers in the system-administration community at the time agreed. Similarly, while Aaron Swartz certainly knew he was bypassing something, many have claimed he had no reason to think what he was doing might be criminal.

Terry Childs may not have intended to be cooperative, but it seems clear he had no idea that he could end up in prison for four years. Jeremy Hammond certainly appears to have understood some might see his actions as criminal, but he felt what he was doing was a form of civil disobedience.

Certainly some judges and many prosecutors feel that they are quite capable of determining which computer crimes are "serious" and which are not. Should the rest of us trust their discretion? Crimes involving firearms are given hefty additional penalties; should the same be true of crimes involving a computer?

The CFAA criminalizes "unauthorized access". This makes sense by analogy with physical property, but there is quite a bit of ambiguity as to what constitutes "unauthorized" access to a computer. Unauthorized use of physical property pretty much means stealing it; unauthorized use of a computer can cover a wide range of things.

For example, the CFAA, in theory, criminalizes creating a second Facebook account, or use of Google search by minors (before March 2013). 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, and they used these accounts in ways contrary to the E-Bay terms of service. Using a workplace computer to check out Facebook, or even to check news headlines during lunch, is often "unauthorized".

On the other hand, Lori Drew was acquitted of violating the MySpace terms of service, in a case in which Drew created a fake MySpace account that may have contributed to the suicide of Megan Meier.

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?"

A closely related question is that of restitution: should a hacker be obligated to pay costs that clearly are part of normal security procedures? Sometimes hackers are asked to repay system owners for the costs of basic retroactive patch installation.

A brief argument in favor of the CFAA approach is that computer crimes often have unforeseeable effects, and so a very broad proscription is in order.

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 (1000+ words)