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Oct
25

All patents are theft

by Richard Hillesley

If necessity is the mother of invention, patents are its delinquent offspring, providing stumbling blocks to innovation and progress, inhibiting the free exchange of ideas, and restricting our knowledge of how things work, says Richard Hillesley…

Pablo Picasso is supposed to have said that “all art is theft”. The assertion may be controversial, but the intention is clear – the creative process, which relies on the evolution of techniques, observation and criticism, is an assimilation of that which has gone before, and all creativity, whether artistic, technological or scientific, walks a thin line between innovation and originality, plagiarism and parody. Even the idea that art is theft is a common place among artistic communities. Andy Warhol took this concept a few stages further. During a 1966 interview he told his interviewer; “Why don’t you ask my assistant Gerard Malanga some questions? He did a lot of my paintings.”

Linus Torvalds himself noted in another context, when rebutting arguments against open source by Craig Mundie, Microsoft’s senior vice president in May 2001, “I wonder if Mundie has ever heard of Sir Isaac Newton? [Newton] is not only famous for having basically set the foundations for classical mechanics (and the original theory of gravitation, which is what most people remember, along with the apple tree story), but he is also famous for how he acknowledged the achievement: ‘If I have been able to see further, it was only because I stood on the shoulders of giants.’”

Newton’s remark was intended as a derogatory comment in the margins of a letter to his diminutive contemporary, the scientist Robert Hooke, and was not an original observation, but tells a wider truth, that the creative process and the discovery of ideas is very seldom the product of one man’s work in isolation, but an accumulation of what has gone before.

Much of modern intellectual thought has defined itself by questioning the rites of authorship, authenticity and identity. This paradox lies at the heart of the debate about ‘Intellectual Property Rights’ and the ‘ownership’ of ideas – a debate in which the Linux and free software movement has found itself embroiled, directly through the patents crisis and the convolutions of copyright law, and less directly through its relationship with the Net.

Free software has been successful way beyond the expectations of its proponents and its detractors, appealing to a far wider audience than might have been predicted, but as Richard Stallman is quick to remind us, there is still some way to go: “The only reason we have a wholly free operating system,” he has said, “is because of the movement that said ‘we want an operating system that is wholly free, not 90 per cent free.’ If you don’t have freedom as a principle, you can never see a reason not to make an exception. There are constantly going to be times when for one reason or another there’s some practical convenience in making an exception.”

By its very nature free software challenges modern conventions of ownership, and its continuing existence and the blossoming of ideas that free software represents, is directly threatened by the extension and proliferation of trivial and contestable patents over the last two or three decades.

Software uses language as a means of interacting with the millions of on and off switches that comprise a computer. The sets of instructions that are contained in a computer language, or any other computer program, rely on basic structures that are common to all computer languages, and have evolved over half a century of shared development.

The most famous expression of this truth was provided by Bill Gates in a Microsoft internal ‘Challenges and Strategy’ memo, dated May 16,1991. “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents”, he wrote, “the industry would be at a complete stand-still today.”

Rather more revealingly, Gates concluded that the “solution” to the problem of patents was “patenting as much as we can… A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.”

Just one of the many compelling arguments against patents for software, as in other parts of our lives, is that invention and innovation in software is cumulative, and depends entirely on the efforts of others who have gone before – and that this will continue to be the case with every small development in the field of programming. Good programmers invent new processes every day, and other good programmers use these processes to make further inventions. That is, and always has been, the nature of the job. To assign patents to these small inventions, which are effectively expressions of speech, is to stop innovation in its tracks. This matters because code runs our lives. As Lawrence Lessig puts it: “These machines run us. Code runs these machines. What control should we have over this code?”

If necessity is the mother of invention, patents are its delinquent offspring, providing stumbling blocks to innovation and progress, inhibiting the free exchange of ideas, and restricting our knowledge of how things work.


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    • Shawn

      All software patents are illegal. All software is algorithm. This is a scientific fact. And the law clearly states that algorithms can not be patented. It’s time to start charging judges with criminal intent for not doing their duty and invalidating all software patents.

    • Paleoflatus

      Thanks for a well-considered opinion. A corollary to that is the role of patents in stultifying progress and making a significant contribution to the relative decline of the West. Technical advances and inventiveness have always been part of the rise of the U.S., which has now clearly passed its peak. I hope this article will at least help more of us to realise that Isaac Newton had a good philosophical point, which we will continue to ignore at our peril.

    • Pingback: LXer: All patents are theft | Coders & Admins

    • don

      While I agree that patents are a broken system especially when considering the problems facing humanity in the 21st century you cannot simply call for their abolition without proposing an alternative system to reward innovation. I think the xprize model is a credible replacement. The winner needs to put their idea into the public domain, that way good ideas get distributed as quickly as possible to as many people as possible. In exchange the winner gets a wad of cash, but also, they get a lot of free advertising, kudos, first mover advantage and are acknowledged as experts in their field. They have also proven to work, see http://www.npr.org/2011/10/19/141481055/revolutionary-oil-skimmer-nets-1-million-x-prize for an example.

    • Scott Swinyard

      A freezing naked caveman is sitting on a rock making the first spear when another comes walking toward him wearing a fur and has another one in his arms. They look at each other and think to themselves “Wow I really need what that other guy has. A third caveman is sitting on another rock a short distance away and sees what’s happening. Very quickly he looks around, finds a nice straight stick and starts whittling away on it with with a sharp rock as fast as he can. Just as the first two cavemen are about to be face to face he runs up steps between the two and hands his spear to the guy with the furs and gets one of the furs for it in return.

      Is this right or wrong?

    • Scott Swinyard

      No reference to open source was intended by my previous post.

      I actually use Linux and that’s how I happened on this site, but i believe there is a difference between stealing someones idea and having a monopoly on them.

    • r_a_trip

      @Scott Swinyard

      ***Is this right or wrong?***

      In a purely competitive and free market, this is perfectly acceptable. The third caveman is quick to acknowledge market trends, is a fast manufacturer of spears and he offers them timely at comparable prices to the competition.

      This is not stealing ideas, this is proliferation of knowledge. Caveman number one now has learned the concept of first to market. He might also have discovered the concept of trade secrets.

    • http://davelane.name Dave Lane

      @Scott Swinyard

      You can’t “steal” an idea. It’s not possible. Short of forcibly altering the originator’s brain to remove the idea, you can, at worst, copy it. Copying is not, in any way, like stealing.

    • Nelson

      The best thing I have read on the subject so far. Thanks.

    • Nelson

      @scott swinyard,

      I believe the third caveman is a very smart ape indeed. Imagine, if I was the second caveman wandering with two furs, one on and the other one in my hand ( probably looking for a nice chica to spend a cozy night with ) and then all of a sudden I see another stinky raged caveman coming toward me with a speare in his hand. I start to panick and pick up some rocks to try to stop him…and all of a sudden another caveman come ins with another spear probably longer and sharper than what my rival caveman is charging me with and wants to trade it for my surplus fur…I would in two heartbeats accept the deal…and if a survive the fight i would forever thanks him for saving my ass.

      No wrong doing in the deal.

    • Ken Jennings

      In the Microsoft-approved reality the third caveman would simply use his spear to skewer the caveman with the furs in the back, thus acquiring a monopoly on furs. Having all the furs he would trade one to the first caveman in exchange for his spear. And so, now with a monopoly on spears the third caveman stabs the first caveman and takes back the fur. The third caveman now has a monopoly on furs and spears.

      That’s how Microsoft defines right.

    • Sum Yung Gai

      Don’s comment about “an alternative system to reward innovation.” Innovation does need to be rewarded.

      However, such a system was already in place long before software patents were (mistakenly) allowed by the SCOTUS in 1989. That system is called the copyright system and worked very well. It still does today. GNU/Linux is successfully propagating just about everywhere due to long-standing copyright law, not patent law. Microsoft became wildly successful with MS-DOS and Windows 3.x (and their development tools, QuickC, QuickBasic, etc.) due to copyright law. Apple was also successful with the Mac OS due to copyright law. Borland, Lotus, WordPerfect Corp, Peter Norton Computing (later Symantec), and a host of others did likewise. Red Hat uses copyright and trademark law today (has for years), and they’re a billion-dollar company; software patents are used by them only defensively, not offensively.

      So, since we have had an existing, successful system for decades for rewarding software innovation, why are we continuing to allow this obvious failure of a software patent regime?

    • John Nicholas

      Why on earth does everyone keep putting this assumption that you need to encourage innovatino out there?

      As far as I can tell its total bullshit, most of the work with computers has been done for the love of it – not because they want to innovate. People who require incentive to innovate really shouldnt be given it – they are the snake oil salesmen.

      If there was a REAL need for encouraging innovation wed still all be in caves. We are not ergo we innovate naturally. We see problems and we bend the world around our wills to get what we want.

      I’d suggest that patent law was put in place to protect people who only did a small amount of innovatino and felt they were in danger of losing their advantage.

      People cite the billions in pharmacy … but that only exists BECAUSE of patent law. There is no necessary value to it, which is why we are finding that the same companies are corrupt when it comes to trials.

    • Brennan

      STOP THINKING!!!! You’re violating patents.

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    • Bryan

      Is there anything more evil than a patent on life saving medicine? I honestly think the patent system is at the core of the problem with the Heath care system.

    • http://ripoffasusual Alex

      Perhaps the real solution is to get a patent troll company on side. Then share all proceeds it can make from attempting to patent everything around anything that the likes of Microsoft and Apple should patent to block them from further “innovation” in any direction. It’s the tried approach of industry from previous decades applied to software patents.

      The troll is important for some money to get the system rolling. The trouble is at the moment rather than fighting them we are in affect all standing round yelling while they continue to roll forward with troops and bulldozers/tanks pushing us off the land.

      It’s only (continuing the analogy, one I hate actually because it’s so naff that everything has to be described as a battle or war) by fighting them to a stand still at least that things will change.

    • http://members.apex-internet.com/sa/windowslinux apexwm

      Software patents have already done a lot of damage. And, Microsoft is actively using software patents to help squish competition before it becomes a problem. Sound familiar? Again, Microsoft is gaining a monopoly with the desktop market and is trying to gain back share of the mobile phone market using software patents, instead of trying to come up with a decent phone that can compete with Android and iPhone. It is a very grim situation, and ultimately it is the consumers who pay the price. Software patents should be abolished entirely.

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    • Jan de Vos

      Someone has to start making T-shirts with that slogan on it. “All patents are theft”.

      Very good article, thanks.

    • rm42

      In a perfect world. The first and third cave men would have realized they had a common talent in making spears and joined forces in making more spears and in educating others to make them as well. The second caveman would have been thankful for the spear that was given to him by his brothers and shared his surplus with them. That way everyone would have had what they needed. Humans should be trying to cooperate, not trying to compete with one another. That is the whole crux of the problem. Greed *is* evil.

    • Joe Mama

      “Humans should be trying to cooperate, not trying to compete with one another. … Greed is evil.”

      What measuring stick are you using for evil? Humans are competitive by their very nature–familiar with the notion of “survival of the fittest?” Why is it most socialists hate religion, yet manage to come up with their own moral BS that they want to force everyone else to live by? Why do they love Darwin’s ideas on evolution, yet not believe it should apply to humans?

      In a “perfect world,” oh dreamer-of-childish-fantasies rm42, lazy people who want to suck at the public teat would get off their rear, and everyone capable would contribute to society (familiar with the free rider problem?).

      We’ve created a modern society partly by virtue of competition. A system where there are no rewards for taking risks and striving to get ahead, to excel, is a sad system populated by apathetic people.

    • http://www.anr-institute.com Erwin M.

      It is an interesting article but it’s missing the point of patents entirely.

      The purpose of patents is to encourage to disclose the ideas behind the invention, as oppose to keep it a trade secret, and to protect the inventor. The idea is that the inventor is disclosing the invention, so that others can understand the invention and later improve on it. The inventor gets a monopoly right to further develop the invention and create products.

      But with software this goes bad. Because a software patent is not disclosing any information. If you have a machine then a patent contains how to build the machine. If you have a software patent, then the patent contains no useful information how to build the software, other then the general idea.

      A software patent should contain a specific implementation, like a patent on a machine. Take a look on the patent of a dynamo: http://www.google.com/patents?vid=284110

      From the patent I could build the dynamo. Now take a software patent, from this patent I could write the software in many many ways, in many languages.

      There is no disclosure of information in a software patent other then the general idea. Also, many software patents have not the level of an invention, but are general problem solving techniques that are known to all people who are skilled in the art.

    • ΣMMX

      Since industry is getting dirtier, why people should not get more dirtier as well, and start reverse engineering things. As message stated [Rather more revealingly, Gates concluded that the “solution” to the problem of patents was “patenting as much as we can… A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose. That price might be high: Established companies have an interest in excluding future competitors.”] It was against all startups not few, so why not give em taste of their own ?

    • rm42

      “What measuring stick are you using for evil?”

      (Romans 13:9-10) For the [law code], “You must not commit adultery, You must not murder, You must not steal, You must not covet,” and whatever other commandment there is, is summed up in this word, namely, “You must love your neighbor as yourself.”  Love does not work evil to one’s neighbor; therefore love is the law’s fulfillment.

      You see, if love was the norm, there wouldn’t be millions upon millions of people starving as we have today. The world’s resources are more than plentiful to supply the needs of everyone alive today and more. But, because of greedy hoarding and unjust abuses what we have today is great inequality and large scale suffering.

      “Humans are competitive by their very nature”

      Humans are born with an inclination to do bad things. That does not excuse us when we do them. We need to rise above those debauch tendencies, or at the very least fight them back.

      “–familiar with the notion of “survival of the fittest?”

      The theory of evolution has failed miserably to explain the origin of life. Evolutionists have not been able to demonstrate that their theory is in harmony with the fossil record or with the DNA trail.

      http://temporaryland.wordpress.com/2011/03/25/i-have-been-banned/

      The theory of Evolution is a dangerous myth. In the past, great suffering has been caused by people in power who viewed life as just the “rat race” of struggling to survive, and with only death as the final outcome. Believing in the “survival of the fittest,” the evolutionist has no incentive to love his fellowman, or to behave differently from brute beasts. Evolution is entirely negative in its effect on mankind. It cannot give a satisfactory answer to any of the questions about life. But the Bible can.

      “Why is it most socialists hate religion, yet manage to come up with their own moral BS that they want to force everyone else to live by? Why do they love Darwin’s ideas on evolution, yet not believe it should apply to humans?”

      I am not a socialist.

      “In a “perfect world,” oh dreamer-of-childish-fantasies rm42, lazy people who want to suck at the public teat would get off their rear, and everyone capable would contribute to society (familiar with the free rider problem?).”

      I agree. Laziness is likewise evil.

      (Proverbs 18:9) Also, the one showing himself slack in his work—he is a brother to the one causing ruin.

      “We’ve created a modern society partly by virtue of competition. A system where there are no rewards for taking risks and striving to get ahead, to excel, is a sad system populated by apathetic people.”

      Today, capitalism, socialism, and just about all other forms of human government have plainly failed to bring a satisfying life to mankind. I don’t think that the average person demonstrating outside Wall Street, and other similar demonstrations around the world,could be labeled as lazy. (And no, I am not one of them.) What we need is a different form of government. We need a “benevolent dictator” that will not allow himself to become corrupt. We need a government that ends greediness and laziness. We need a government that ends the health care problem for everyone. One that ensures that every person has what they need and that provides satisfying, justly remunerated, work for everyone. We need the government that the Bible promises.

      Dan 2:44, Psalm 72:12-14

      Fortunately, there is nothing in the world or out of this world that can prevent it from taking over. This is not going to be a democracy. ;)

      Revelation 11:15

    • Drew Bowler

      Patent laws should only apply to tangible products such as hardware, copyright laws to intellectual products such as software. It is one thing for someone to willingly give their work to the public ( and very admirable). But, if you’ve invested your life savings and years of work into a product that you conceived, why should you be expected to just turn it over without due compensation? This idea smacks of socialism where one works, another doesn’t, and they both profit the same. That is involuntary servitude, and I would suggest if this model is followed, you will further see the erosion of free market innovation.

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