Today, September 24, is the World Day Against Software Patents.  On this day, a number of groups are calling for an end to patent protection for software. Instead, these groups want software to be protected under copyright law. In celebration of this momentous day, I will point out that copyrighting software is the real problem–patents are the solution.

Image Credit: Rodolfo Clix

Let’s jump in. There are generally two mechanisms to protect software in our intellectual property regime: patent it or copyright it.  Copyright is generally used for expressive works, like books, pictures, or music.  Patents are used to protect inventions generally: new devices, machines, compounds, chemical formulas, and methods for exploiting them.

Early in the computer industry, software was rarely sold apart from the computers they ran on.  So either you employed a computer programmer to maintain the computer for you, or you purchased the computer pre-programmed.  With the advent of software that could easily be copied from machine to machine, many companies were uncertain how to keep their work from being pirated–none of the legal solutions available seemed all that great.

The US Patent & Trademark Office refused to consider software as a legitimate subject matter for patents as far back as the 1960s.  The PTO defended its decision on two grounds.  First, they claimed that they lacked the personnel needed to adequately determine the validity of a software patent.  Second, they asserted that software is not a patentable subject matter, since most software heavily borrows from the field of mathematics and by law, mathematical truths are unpatentable.

However, under the law of copyright in the 1960s, software could not be copyrighted either. The Copyright Act excluded any “procedure, process, system, [or] method of operation.”  This was considered to include software. As a result, software was simply protected via private licensing agreements.

Eventually, copyright law changed to allow the copyright of some programs, and the Supreme Court pushed the PTO into accepting software patents in certain circumstances.  By and large, though, most software is protected by copyright, and most opponents of software patents believe that’s where the proper protection lies. However, the fact of the matter is that software patents are much more justifiable and make more sense than software copyrights. Here’s why:

1.  Software patents are more in line with the plain meaning of our IP laws than software copyrights.

The copyright act explicitly bans methods, procedures, and processes from copyrightable subject matter.  Patent law explicitly covers both “processes” and “machines”, not to mention improvements thereon.  By moving software, which is most accurately described as a process, out of patent and into copyright, a number of changes to the traditional understandings of idea and expression to accommodate software.  In the past, something with utility–like software–would be summarily excluded from copyright protection. But with software, judges now have to engage in the impossible task of separating the “expressive” part of a piece of software from its functional elements.  Courts would never try to engage in this sort of separation process for a shirt or a small appliance.  If copyright were really the ideal protection scheme for software (or even just a good one), it wouldn’t need such special treatment.

2.  New uses are not protected by copyright.

Very few people value software based on its aesthetics.  Generally, software is valuable to someone because it accomplishes something important to the user.  In IP, this is known as ‘utility’.  The only branch of IP that protects utility is patent law.  You can’t trademark a black solar panel because solar panels have a use.  You can’t copyright a solar panel because solar panels aren’t a form of expression.  The only way to protect a solar panel is through patent law.

That’s why, under copyright, all innovation in software is left unprotected.  So any new programming method can only be legally protected by keeping it secret.  Fail at that, and your new invention is in the public domain.  This doesn’t just create less incentives to innovate software–it also creates a motivation to not share those innovations.

3.  Copyright fails at encouraging disclosure; Patent law requires it.

One of the points of the patent law system is to encourage people to share their technical innovations with the public.  While copyright law provides incentives to create expressive works, modern copyright law lacks the incentive to share the nature of the improvements over the prior art with the public.  Companies can copyright binary executable files and distribute them, but they have little incentive to share how they solved certain technical problems they faced or improved on the prior art.  Patent law requires that you provide enough technical detail that the average person in the same field could implement your invention from your description.  Putting this much knowledge out in the open helps future inventors not re-invent the wheel every ten years or so, which seems to happen a lot in the software field.

The irony here is that those who oppose software patents also tend to encourage “open source” software, or the sharing of the underlying method of operation for the software with the public.  Given a choice between a world where software is protected by a mechanism that doesn’t require or even reward sharing of the underlying method of operation, and one where those seeking protection must disclose that method, you’d think advocates of sharing of knowledge would flock to the latter.  Unfortunately that hasn’t been the case so far.

If you want to encourage the state of software to move towards a model of shared knowledge, shorter protection time periods, and more sensible tests for violation of the law, your real enemy is software copyright, not software patents.  While there are definitely problems with the patent system in this field, like a lack of skilled software patent examiners, the problems aren’t inherent to the patent system.  They can be remedied with a few minor changes to the law and some extra PTO funding.  The flaws in software copyright can’t be remedied without turning copyright on its head.  It’s a square peg in a round hole, and people who truly care about intellectual property and software law should stop backing a fundamentally flawed system and start trying to promote something that could work.