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'New communists' worried by software patents
Gary Herman
It may seem an arcane technicality of interest only to nerds, geeks and lawyers, but when Microsoft's Bill Gates starts using language that sounds suspiciously like red-baiting demagoguery in defence of software patents, the whole world should be concerned.
Gates was speaking to the online news service, CNET, on the eve of the January 2005 Consumer Electronics Show in Las Vegas, perhaps the most important single event in the technology calendar. During the interview, he commented on the idea of the reform of intellectual property laws.
'There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises,' Gates said in a thinly-veiled defence of the US practice of patenting so-called 'business methods' and the software that underpins them.
Gates has long been an advocate of software patents (at least since Microsoft itself was accused of breaching such a patent on its Expedia travel website a few years ago). Software patents are used in the US to protect the things that software does rather than the software itself. For example, Amazon.com patented its 'one click' technology which allows customers to re-enter shipping and billing information with a single mouse-click.
In Europe, it is not - yet - possible to patent what software does, since European law considers software creation to be a form of authorship. Copyright is considered a more appropriate legal instrument - although some forms of software with specific instrumental effects (for example, programs controlling machines) can be patented.
The problem for companies like Amazon, and pretty much anyone offering services on the internet, is that clever ideas like 'one click' shopping carts or website personalisation are considered critical to commercial success. They are often more important than any products (think of all those sites that aggregate news stories or offer price comparisons) and the individuals or companies that come up with these ideas want to protect them. As everyone knows, you can't copyright an idea, only the instantiation of an idea; but if you can patent it, on the grounds that it's just the same as an invention, then the clever idea may be worth real money.
Gates' comments were almost certainly inspired by recent developments in the EU. In particular, the combination of the European court judgement against Microsoft's attempted monopolisation of the media player market and Poland's recent vetoing of a new directive on intellectual property rights.
Just before Christmas 2004, the Poles - the big new player in the EU - blocked the new 'Directive on the Patentability of Computer-Implemented Inventions' - a measure introduced by the European Commission explicitly to 'harmonise' European and US law. The Poles argued that they needed more time to consider the issue of software patents. In Gates' mind, this caution constitutes a new form of communism.
As many critics have pointed out, patenting - unlike copyright law (or at least, European copyright law) - favours the wealthy. Copyright is an automatic right, while patents are only granted after an often lengthy and costly legal process. Smaller innovators may not be able to afford the expense of patenting, and good ideas will become capital for big companies like Microsoft and Amazon.
LINKSBBC: Software law delayed
BBC: Bill Thompson comments
CNET: Gates interview
Last modified: Tuesday, September 13, 2005
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