[DMCA-Activists] Summary of Nature of Software

[Seth Johnson]

> http://swpat.ffii.org/analysis/cost/index.en.html#softecon


The software economy includes properties which do not exist in any
traditional industry:

  1.Software is pure information: it can be published on the Internet with
zero marginal distribution costs. 

  2.Software developed by one man (ex. the Linux operating system, the
Konqueror web browser) or a group of friends (ex. the Apache web server, the
Ogg music compression format) can compete with equivalent software
developped by multinational companies such as Microsoft, Thomson Multimedia
or Netscape (ex. Windows, Internet Explorer, iPlanet, MP3). 

  3.Highly multidimensional network effects: multiple interoperability
issues are coupled in software which generates much stronger network effects
than in any other field.

The first two features explain why much software innovation comes from
individual developers and very small software publishers based on the
Internet. It is a justification for protection measures in favour those two
groups. The last feature is an argument for stronger competition protection
measures.

The epistemologic nature of software is equally striking:

  1.Software is logics, a hierarchy of abstract functions. Before the
computer existed, software already existed. Patent law scholars were careful
not to allow the patenting of the logical aspects inherent in all
apparatusses, such as "operation instructions". With the advent of the
computer, these logical aspects emancipated themselves from the apparatusses
and the humans operating them. 

  2.Software is equivalent to human reason and to human language. It
consists in describing a reproducible series of steps to manipulate data
(abstract information). Algorithms can describe all human human reasoning.
While speaking Logical Language (Loglan/Lojban), human speech becomes
turing-complete. Computer programs are equivalent to mathematical proofs and
are validated by means of logics rather than by physical experiments. 

  3.The value of software ideas lies in their abstractness. Ingenuous
software innovations, such as the Karmarkar inner-point method, are
extremely general, leading to patents with an unoverseeably broad scope of
applications. Less abstract software ideas tend to be trivial. Most software
patent claims are both trivial and broad, and this phenomenon does not
significantly depend on how strictly patent offices apply the rules of
"novelty" and "non-obviousness". Moreover, abstractness makes novelty search
all but impossible. 

  4.Software is reflexive (it is its own description): it can be self
generated without human intervention, it can duplicate itself just like a
conscious life form, it can coordinate itself with other software just like
a social form. It is an objectivation of human intelligence and lives
through the communication of those who understand the language in which it
is written. Many software companies have names like "Active Knowledge",
"Thinking Objects" and other terms drawn from "Artificial Intelligence",
which reveal that software is increasingly working as the brain within our
social organism and thereby takes on functions which previously belonged to
human intelligence or even to law, as Prof. Lessig's book "Code is Law"
convincingly shows. 

  5.Software is intellectual creation and even art. There are as many ways
to implement a patented functionality as there are ways to apply algoritms
like chromatic modulation or twelve-tone music to the creation of
symphonies. Programs are often even more complex and delicate than symphonic
creations. The difficulty usually does not consist in devising appropriate
algorithms (building elements) but in building a well-designed "tissue", a
sustainable multi-layer hierarchy of functionalities with an infinite number
of choices that require skill and imagination. Therefore copyright is at
least as appropriate to software as to construction plans, scientific
articles, operation manuals, pieces of music and most of the other types of
intellectual creations for which it is used. Even artistic creations such as
multimedia works and games include software programming. Moreover, poems
written in Logical Language have a particularly high aesthetic value, and
even pure programming languages like Perl are occasionally used for poetry.

These properties deserve a lot of attention from a legal point of view. They
require to consider with great care the meaning of infringement and
contributory infringement induced by the use of single software or multiple
software. Moreover they make it necessary to define a clear limit to the
patent system in order not to let crude control mechanisms which were
designed for material objects reach out into the sphere of the human mind.
Some writers like Dr. Kiesewetter-Köbinger, patent examiner at the German
Patent Office, have therefore argued that software patents constitute a
radical breach of basic values of our civilisation and an attack on central
tenets of our (German) constitution, ranging from Art 1 "The Dignity of the
Human Being is Untouchable" and Art 2 (equality principle) to freedom of
expression, freedom of contract design and the requirement that the
intellectual property, which in the case of software consists in the tissue,
be protected rather than expropriated.

-- 

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