[DMCA-Activists] Patent Wars and the End of Software Business

[Seth Johnson]

> http://www.adtmag.com/article.asp?id=10003

Analysis: Patent wars and the end of the software business


By Gary Barnett
9/16/2004


(ANALYSIS) Imagine a post-patent-apocalypse world where no new
software can be written because even the most basic software
patterns cannot be used without paying a massive fee. And even if
you wanted to pay $1 million to incorporate a "For ... Next" loop
in your program, you can't transfer the money -- the banks are
closed because the software and business processes they rely on
belong to someone else. 

While patent laws would be repealed and treaties repudiated long
before this "patent winter" occurred, patents are still powerful
medicine best applied sparingly and with great care. The
extension of patent law to cover software raises great dangers
for an industry that has become increasingly litigious over the
past decade. 

Some vendors, notably IBM, have a massive stockpile of patents
that help to regulate the industry. The firm has, to date, shown
itself to be judicious in its use of patents. But at the recent
LinuxWorld conference in San Francisco, IBM issued a quiet
warning to the industry. Amid growing concern about the extent to
which Linux might infringe on a number of vendor's copyrights,
IBM's Nick Donofrio, senior vice president of technology and
manufacturing, said, "IBM has no intention of asserting its
patent portfolio against the Linux kernel unless, of course, we
are forced to defend ourselves." 

The recent discussion of patents has centered on open-source
software and the deep concerns many observers have that leading
open-source software products may infringe on a raft of patents.
Much of the debate is focused on Linux, but other leading
products, like the Apache Web server, could easily become
embroiled. 

But I'm a little bemused by the notion that open-source software
might be more of a risk to patents than closed-source software.
The only reason for this is that it's easier to check an
open-source product to see if it infringes on your patents
because it is (by definition) easy to download the code and
inspect it. Indeed, the fact that you can obtain source code for
open-source products makes the claims made by some of its
opponents that "open source is a charter to steal code" somewhat
ridiculous. It's an odd kind of theft when you're obliged to
leave everything you've stolen out on your lawn for the whole
world to see and inspect. 

Proprietary software enjoys a certain degree of secrecy; if a
proprietary software vendor wishes to steal an idea from a
competitor, or from the open-source movement, it has to compile
the stolen code, effectively "hiding the swag." Ovum believes
many proprietary software products are as full of "borrowed code"
and patent infringing methods and constructs as any open-source
product. As an example, let's examine operating systems. 

There are relatively few software engineers in the world smart
enough to write operating systems. If you go into the labs at
Microsoft, IBM, Sun or HP, you'll be confronted by a bevy of
super-brainy geeks. What is interesting is that many, if not
most, of them have also worked for one or several of these other
vendors at some time. In practice, the pool of "master operating
system developers" in the world is so small that they all tend to
move between a small number of companies. Knowing that their
operating system developers are likely to end up working for a
competitor, companies put onerous terms into their employment
contracts that prevent developers from copying code and revealing
secrets. Obviously, this is a ridiculous thing to expect as their
knowledge and experience is precisely the thing that makes them
so attractive to the competition. 

If proprietary software is every bit as likely to infringe
patents and copyrights as open-source code, then it would be
wrong to penalize open source simply because those infringements
are easier to identify. If Linux does become the subject of a
legal battle over patents, then every closed-source operating
system should be subjected to the same level of scrutiny. The
only significant difference between open-source and proprietary
software lies in having someone to sue. 

The balance that intellectual property law has to strike is to
protect people's right to profit from their efforts and to
encourage the development and creation of new ideas and products
while ensuring that the system is not abused to the detriment of
the world at large. 

The software industry is in the middle of a storm that could
potentially have disastrous ramifications for IP law. If a global
intellectual property war breaks out, the ultimate victims will
be patent and copyright holders. Governments will move to prevent
IP law from causing damage to their economies by repealing IP
legislation and repudiating international treaties if necessary.
Our advice to the industry as a whole is to apply IP law
carefully and responsibly, or be prepared to face a backlash that
could change the game entirely. 

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