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).
Here are a few possibilities:
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.
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!