Paper 3: Software Patents / Computer Crime

Comp 317/417, Dordal

Topic option 1: Do software patents need reform?

Paul Graham wrote

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

Patents for physical machines have, arguably, helped advance society by creating an incentive for innovation. But some feel that software patents, in particular, have not been socially useful. Do we need to revise the rules for software patents?

If yes, do you have modest technical changes in the patent process in mind, or do you want to scrap software patents entirely, or something in between?

If no, say why; you might pick a common objection or two to software patents and explain why the objection is not sufficient to justify change, or you might argue that, whatever the drawbacks, software patents do create a socially useful incentive for invention, or you might address a combination of these.

Some people think 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. If you think that all patents are equally bad, feel free to make that argument, but please make your position clear. 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 justifications that have been advanced for considering software patents to be fundamentally different, and thus deserving of special rules:

The most common objection to software patents is that "patent trolls" are so hard to stop. While in theory patent trolls can exist in any industry, in practice it seems to be an issue only for software developers. 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.

To a first approximation, the issue is whether we should keep software patents as they are, or whether we should eliminate them. But you can also argue for some other, intermediate, approach.

Discuss both sides, and come to a conclusion. Your conclusion should either support one side or the other (perhaps with qualifications).

Topic option 2: What is hacking?

In the case Van Buren v US, the Supreme Court ruled that if someone has been granted computer read-access to a set of files or records, then misusing that access to obtain information for an inappropriate purpose does not fall under the scope of the Computer Fraud and Abuse Act (CFAA). The question then is what does? That is, now that "unauthorized access" is no longer specific enough to define hacking, what sort of access is meant by hacking? What intrusions can we criminalize, and how?

Here are a few possibilities:

  1. The perpetrator caused actual harm to someone
  2. The perpetrator abused write access to the system, undermining the integrity of the data contained by the system
  3. The perpetrator employed some "technological measure" to bypass computer-security provisions
  4. The perpetrator accessed the system in a way contrary to the clear intent of the system managers
  5. The perpetrator used a method of access other than the standard API provided by the system managers
  6. The perpetrator used a method of access not part of the standard browser interface to the system
  7. The perpetrators used credentials (ie a password) knowing that it was not officially assigned to them.
  8. The perpetrator acted with malicious intent, ie intent to cause harm (the government would have trouble proving that for most of our examples here)
  9. Some combination of the above

These are all tricky to apply. For 1, harm is notoriously hard to evaluate, and one can argue that Van Buren "harmed" the people whose records he sold. Proposal 3 is popular in some circles, but just what is a "technological measure"? Do 3, 4, 5, or 6 apply to the Auernheimer (weev) ATT attack?

The difficulty of coming up with a workable general definition of "hacking" is a major reason why Congress never clarified the CFAA, even though the issue resolved by the Van Buren decision has been causing controversy for thirty years.

Your paper should provide a specific definition of hacking (perhaps as one of a list of multiple separate actions), and explain why you feel your definition is sufficiently general.

Topic option 3: Consumer harm and Big-Tech antitrust

The problem with applying traditional antitrust law to the tech world is that many examples involve one company doing something intended to harm a competitor, but in such a way that it is not clear any consumers are harmed. For example, Facebook has done anticompetitive things to Snapchat, but there was no consumer harm. Google makes "under the table" payments to ensure it is the default search engine for many browsers (eg Firefox), but there is no evident consumer harm. Apple shakes down developers who want to sell a digital product, is there a consumer harm here? When Facebook bought Instagram, access was still free; consumer prices did not increase. Amazon's Prime option (free shipping for a significant annual fixed fee) serves as a barrier to entry for potential competitors, but are consumers hit with higher prices?

Most (essentially all) Big-Tech antitrust complaints are filed by a disadvantaged competitor. But without a clear showing of consumer harm, it is hard to make charges stick in the US court system.

Discuss some element of Big-Tech antitrust in terms of consumer harm. It does not have to be general.

One approach is to argue that consumer harm should remain the gold standard in antitrust findings, and that without it many of these Big Tech practices remain legal.

Another approach is to pick one (or more) specific Big Tech behaviors, and argue that consumers are in fact harmed. For example, Facebook and Google are free, but maybe they should be paying us for the use of our data?

A third approach is to identify a change to antitrust law that should be made in order to bring some specific anticompetitive practice under legal control. Perhaps, for example, monopolies should be forbidden outright, regardless of harm to consumers. Or you can consider the new-law proposals summarized in foo. In taking this approach, you do not have to address the difficulty in getting your proposed legislation passed.

There may be other approaches as well.

No matter what your position, you must address, in some form, the consumer-harm element!

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)