A very insightful comment on Slashdot questions whether software patents tend to prevent people from starting companies from scratch, as you can’t get started unless you have a patent portfolio to defend yourself with. If this could be shown to be the case, then I think this would be a strong line of attack against the current patent regime. I mean, this is a full frontal assault on the American dream, isn’t it?
The American dream is that you can start from nothing in this country, and as long as you work hard and you play your cards right, you can win wealth and success and make a name for yourself. But if you can’t even get in the game unless you are already a big company with a patent portfolio, then we’ve created a new nobility. Except instead of bluebloods who own all the land, it’s corporations that own all the ideas and use their profits to buy congressmen. Yes, creativity exists, people do make new things, but the new things have to be built upon old things unless we’re going to go back to the Stone Age and start trying to invent things that don’t rely on fire or the wheel.
Although some “intellectual property” can be tolerated, if people are allowed to own the very foundations of our technological society, if nobody can build without their permission, then we really are in an age of digital feudalism, and we’re intellectual serfs. There are efforts to fight back against particularly broad and stifling patents, such as the EFF’s Patent Busting Project, but ultimately we’re going to need to change the system that awards companies these egregiously bad patents. We shouldn’t have to donate our hard-earned money to strike down bad patents that are enforced with our taxes; they shouldn’t be granted in the first place.
So in case you haven’t heard, some really evil laws are on the verge of passing across the Atlantic in the European Union, see FFII’s page on Software Patents in Europe. Basically, there is a push to increase regulation of software patents, which could conceivably destroy Open Source software such as Linux. Software patents are inherently bad, because in practice software patents are never for a specific implementation of a concept. Software patents are generally for such sweeping concepts such as Amazon’s one-click shopping, or right-clicking to get a menu. What happens from an economic standpoint is that this reduces competition in a ridiculous fashion. Here’s my question: who should make a product? The person who implements an idea best, or the person who thinks of it first? Clearly it is in society’s interest for the first person to produce the good. However, it is also important for there to be people to produce ideas, and people may not bother inventing things if they cannot get compensation for their time and energy. So clearly we must allow the inventors to capture enough of the value of their idea to make it worth their while to create. On the other hand, the inventors have to earn their keep. They shouldn’t just be able to sit back in a comfy chair and extort money from people who are actually creating things. And they definitely shouldn’t be able to patent things that are obvious to anyone who works in the field. Patents are necessary to some extent, but some things do not deserve patents, and patent powers must be limited if we are to have a free market instead of a monopoly-dominated corporate aristocracy.
This is terribly relevant to the open source movement, because since many programs are created through volunteer work, and given away for free, it would be ridiculous to ask free software programmers to pay off patent holders. Most projects could not afford this extortion. There are also many side issues that I could remember for you if it wasn’t 1:47 AM. Maybe I’ll put in an update later, but for now, yeah, read http://swpat.ffii.org/