Copyright and Patents Are not a Sound Public Policy in the Software World - Coursework Example

Copyright and Patents are Not a Sound Public Policy in the Software World Copyright and Patents are not a sound public policy in the software world Introduction The massive growth of the web and the development of interactive web 2.0 sites and other applications targeting mobile phones have created room for technological changes in the recent past. As a result, companies have focused on the development of products targeting specific users who can easily access them for free from the internet. The increased participation of software developers in the process of content development of mobile phones and personal PC has created the need for intellectual property. However, software developers are faced with the challenge of deciding whether to patent or copyright their innovations. Copyrights are legal tools used to protect the ideas of individuals including artistic and software program kind of innovation (Wilks, 2009). Patents on the other hand are rights granted by the government which prevents any other person from using and selling the innovations and ideas patented by individuals. Copyright has been traditionally used as a means of software protection and the process of securing the cyberspace from intruders who want to pirate the ideas of others. The use of copyright laws in the protection of software programs has been associated with inconsistencies as the laws were developed without computer content in mind (Lemley, 2013). On this basis, the use of patents and copyrights to protect software innovations has attracted heated debate among web content developers with a majority arguing that it is not needed. In this paper, the negative impacts of software patents and copyrights will be discussed to demonstrate its insignificance in this sector. Though it has been successfully used to protect the idea of people in other sectors, the use of patents and copyrights to protect the ideas of software programmers has proved inept and impractical (Savitz, 2013). History of software patents and copyright In the United States, the US patent and trademark office was developed as a department in the commerce and industry to supervise the provision of patents and copyrights to individuals and companies. During the mid-60s, the office showed openly its reluctance to issue patents to secure computer software ideas and programs. The same trend was followed by the PTO, which avoided granted patents to innovations that were made to ease computations and calculations. These two positions taken at a time when computer software and programs were entering the technology market shaped the debate that followed on the patenting of the software and programs (Lemley, 2013). Due to the increased inquiries and applications, the US patent and trademark office developed a formal guideline for the patenting of computer related innovations as a way of formalizing the witnessed reluctance. In these guidelines, stated that computer programs, whether viewed as an apparatus or process by the developers remained patentable. However, the patent could only be issued if the computer were combined with other nonobvious elements to give a result that is tangible. These programs according to the PTO were patentable mental steps and processes with no physical evidence to guarantee owner protection (Kumar & Kumar, 2011). In Gottschalk v Benson and Parker v Flook, the Supreme Court was made to examine the question of whether computer software and programs were patentable or not. In both the two cases, the Supreme Court made a negative verdict, highlighting the fact that programs could not the protected by the copyright act of 1909. In one of these cases, the court was made to determine whether an algorithm innovation used in the conversion of binary-coded decimals to true binary numbers was patentable. By ruling in the negative, the Supreme Court fueled the debate during the 70s on the same topic and this led to the enactment of the copyright act of 1976. In this act, the congress made it clear that software innovations and programs were copyrightable and controlled by the copyright law. However, this copyright protection failed to provide the extent of protection for programs and the presence of exclusive rights for the copyright owners (Samuelson, 2010). To further debate on the issue of software and program copyrighting and patenting, the congress established the national commission on new technological uses of copyrighted works to study the environment of program development and rule on the extent of protection needed. This recommendation gave patentable rights to software developers but opened room for future debates on the same topic especially with the development of web 2.0. In the Supreme Court case involving Diamond v Diehr, the issue of software patenting took a twist, following into the trend that had been set by the copyright debate. In this case, the jury recognized the fact that computer programs deserved to be granted patent protection (Samuelson, 2010). This decision on the Dierh case increased the possibility of granting patent protection to software and program developers. However, the flip-flop trend that had been set with the Supreme Court created further complications and led to the need by the federal circuit United States appeal court to bring together the rulings in the two cases of Benson and Diehr (Samuelson, 2010). Support for software patenting and copyrighting Since the flip-flopping trend set by the Supreme Court, the issue of protecting computer software and programs has received support from a number of quarters for various reasons. The patent law of the United States is considered as a strong law used in the protection of intellectual properties and ideas. This makes patent protection is better way to assure software developers of the safety of their ideas and products in the face of massive technological competition. Through patenting, the patent holder is given legal power to prevent the illegal use, replication and distribution of the product without his engagement and knowledge. Due to the emergence and widespread use of web 2.0 interactive interface, programs and software are invented and developed on a daily basis and accessed through the internet. Due to the ease in availability and use, these products are distributed to other users across the world that are not bound by any legal law to confine their usage. According to pro-software patenting professionals, the use of patents will increase the public awareness of the products and their availability. With the patent publicly declaring the rightful owner of the program, nay person is prevented from using it in an illegal manner. This is however not possible in the event that these programs are developed but their ownership are not registered with the relevant government authorities (Samuelson, 2010). The United States congress highlighted the need for protecting private ideas and innovation through its statement that any idea developed by man under the sun must be protected through legal means. This legal means referred to in this statement by the congress is the use of legal patents and copyrights. Due to the current development in technology, smaller firms have cropped up whose survival is pegged on the sale and distribution of their software products. Through protection, the survival of such companies is increased as their revenue is assured through legal means. University research on software development for corporations and government installations will also increase revenue in case these ideas are protected through patents and in some instances through copyrighting (Kumar & Kumar, 2011). Software and programs should not be copyrighted nor patented General overview In the face of the arguments for the patenting and copyrighting of software and computer programs, one major thing remain visible; the dynamic nature of science. Science is based on the access, criticism and improvement of the ideas developed by others with the sole objective of developing better and current technologies. A look at the discoveries in molecular biology and DNA reveals the critical work of subsequent scientists, focusing on the input of earlier scientists and making changes depending on the new technological advances. As a result, scientists like Martha Chase and Hershey laid the foundation for Carrick and Watson to discover the structure of DNA and improve the area of genomics (Paterson, 2013). If Chase and Hershey would have patented or copyrighted their discovery that DNA was the genetic molecule in the body and not proteins, not future scientists like Watson and Carrick would have studied their process. This would have hampered the discovery of new genomic ways and the genetic technologies as we see them today. This analogy can be applied aptly to the development of software and programs, an area that is considered dynamic and influenced by time (McGill, 2013). Software and programs are algorithms or sets of instruction fed on the computer to accomplish a specific task depending on the nature of the algorithm. These codes are either computer or human read and their application and importance can only be seen in the presence of a translator within the computer. Algorithms have been in existent from the beginning of the computer age and their patentability has remained known in all quarters of program and software developers. This is because algorithms are mere expressive form of ideas and not in any way an invention unless embedded in computers or other machines. In this situation, the protection granted by the machine does not extend to the software unless it is embedded on the in the machine and the operation of the machine dependent on it (Seltzer, 2013). The development of monopolies over abstract ideas such as software and programs is considered to negate innovation. Software and programs are considered as landmine because their presence cannot be seen and actions predicted. They also act as submarines because of their ability to emerge from nowhere and make significant impacts on the computing process (Cohen & Lemley, 2001). Economical effect on patent and copyright Just like the patenting of molecular biology discoveries would have stifled progress in the area, the patenting of software and programs have massive impacts on the economic benefits of these technological applications. Though the growth of small software companies in the United States has been attributed to the existence of software patents, the negative impacts of full force copyrighting and patenting of programs will affect companies economically (Hughes, 2012). The patents that have so far been granted in the country have been based on trivial program innovations that most software developers prefer not to attach. This has been witnessed within the small companies and software developers whose contents target smartphone and personal computer uses in the country and across the globe (Lamoreaux, Sokoloff & Dhanoos, 2013). Despite perception that patents will protect the development of smaller companies and strengthen their performance in the country and beyond, the use of patents strengthen the market control of bigger companies. Major software players like Microsoft, Google and other companies have the capacity to conduct heavily funded research to develop programs and software for the international markets. By patenting and copyrighting such programs, such companies will shield other small companies from following suit and developing alternative software. For example, a number of software has been developed to assist in reading PDF documents which increases the pressure of Adobe PDF reader company (Cohen & Lemley, 2001). In research and development, the development of new approaches is not novelty based but influenced by the available technological advancements and innovations. As a result, such companies explore the benefits of the available approaches and approach them with an intention of changing them to meet the changing and dynamic technological market. With patenting and copyrighting of software and programs, research and development will become obsolete as a company will be hindered from developing a product that substitute one already in the market. This will curtail the economic development of major software companies in the globe and make the software sector redundant and static despite the dynamic nature of technology (Seltzer, 2013). Innovation effect on patent and copyright The initial intention of patents across the world was to protect, encourage and reward innovation by making information about new products available to other professionals. This at least has been the notion spread by the pro-software patenting groups whose argument has been shrouded by fallacious claims. Patents do not actually reward innovation but provide lawyers and patent systems an opportunity to make money out of legal representations. Innovators whose ideas can solve different challenges across the technological world have been threatened by court cases and this has hampered their efforts to develop new products as these have been gauged using biased similarity index to other products (Nieh, 2010). Furthermore, the continued buying and selling of patents has underscored the initial need for the development of idea protection through patents and copyrights. Companies with stronger financial might have lured smaller business into selling their ideas and forfeiting their legal claim to them. The monopoly enjoyed by Microsoft, for example, has affected other company’s abilities to develop software on current programming tools. As a result, most programs operating and compatible with Microsoft are developed from outdate java programming languages which affect their ability to meet the current needs of the market. Patents and copyrights therefore retard the ability of innovators to develop products compatible with products of bigger companies like AOL, Microsoft and Google (Cohen & Lemley, 2001). Open-source effect on Patent and Copyright Open source software development results into the sharing of publicly available source code that is used to develop identical products. With the development of web 2.0 internet, open source software development has risen and this has led to the development of public internet access software like Mozilla Firefox, android, Google chromium among others. The emergence of the use of the source code software development approach has diverted the attention created by the need to patent software development process and issue copyrights to individuals and companies. The ready availability of source code and the lack of laws prohibiting users from modifying it have been attributed to its continued usage across the web (Samuelson, 2013). Through source code, the process of tuning and software improvement is guaranteed which creates room for the development of wide range of software products. With source code, every user is granted the right to redistribute the modified versions which has encouraged innovation in the development of software. By granting unrevoked redistribution rights that are universal, the use of open source code has levelled the competition for all companies engaged in the process of software development. This has not been witnessed in areas where competition is restricted by the issuance of patents and copyrights to larger multinationals which affect the competitive abilities of the smaller companies. Finally, the source code also allows every user the right to use the source code in any way they deem fit or proper for their product development processes (Boyle, 2009). Moral justification arguments To support this viewpoint, the paper will use a number of ethical theories to demonstrate how the issue of software patenting and copyrighting has negated the process of innovation in the sector. Kantian and utility thoughts on software innovation, patenting and copyrighting will be presented to demonstrate how removing patent barriers improve software development and innovation (Seltzer, 2013). Kantian thoughts on Patent and Copyright The idea of copyrights and the protection of the views of writers was conceptualized by a number of philosophers including Emmanuel Kant. His theories dominated the development of copyright laws in Europe and beyond as his views supported the authorial personality rights. Though the theories advanced by Kant in his philosophical discourse on copyrights have not been extensively adopted in other civil laws in the united states, their application can be used as the basis for theoretical justification for innovators right on the products. This applies to the development of abstract ideas and products like software and programs as it gives prominence to the autonomy of the developer and makes him at liberty to determine the copyright authority he should possess (Cohen & Lemley, 2001). According to Kant’s ethical theory, autonomy occupies a central position in liberal thought and this determines the application of intellectual property laws in a country. Kant’s theory different from the utilitarian approach to copyrighting and patenting of ideas in which the end justifies the means kind of attitude was adopted. In his philosophical approach, he believed that all people have rights and any action can only be considered as morally right if it does not harm the next person nor prevent them from pursuing their goals. While developing products like computer programs, the feeling of belonging consume us and this results into the fear of someone else doing what we have done (Nieh, 2010). This is considered as the idea behind the development of patents and copyrights as they have always attempted to protect few from the actions of our minds. Following Kant’s theory, it is obvious that there is need for the development of a universal software development and protection system which will ensure that the process of programming is not only controlled in the United States but in parts of the world also. With such a system, the complete patenting and copyrighting of abstract program ideas will benefit the product designers and the consumers at the end of the chain (Lamoreaux, Sokoloff & Dhanoos, 2013). Utility thoughts on patent and copyright Utilitarian theorist has extensively discussed the development of patents and copyrights as ways of protecting the ideas and inventions of individuals. Though the granting of patents and copyrights has been discussed within the discourse of intellectual property, utility theorists believe that the two are distinct and cannot be discussed with equal voice. As highlighted by David Hume, a society can only benefit if its products are protected due to the scarcity and insatiable nature of goods across the society. However, the doctrine of intellectual property cannot be given the economic perception of scarcity of goods and ideas as the doctrine is borrowed more from a capitalist ideology (Boyle, 2009). By granting patents to software and programs developed the law grants right to individuals who may have been placed in a position to make a specific code work but should no exclusive right to its operation. Utilitarian theorist believes that as long as the end justifies the means of achieving it, that approach remains ethical and applicable to the society. In the case of software patenting and copyrighting, the end is protection of private ideas and abstract thoughts against other people from either thinking in that line or developing algorithms that can solve the same problem. This is not in line with the primary notion of the utility theory and is believed to incline more to the libertarian theories (Samuelson, 2013). Conclusion The internet and web 2.0 developments has also created an opportunity for computer engineers and programmers to develop products that meet the needs of the market and are easily available. The history of software development traces back to the 60s and has witnessed massive changes due to the free environment that has been created. However, in the recent past, a debate has ensued on whether software and computer programs should be patented and copyrighted like any other idea (Boyle, 2009). By patenting programs and software, an individual gains exclusive rights to the root source and this prevents other programmers from developing identical products. In this paper, the opposing point of view has been taken as the issue of patenting software and programs have been opposed. Patenting software and programs which are merely algorithms and abstract ideas will affect the process of product innovation in a society and reduce the overall economic ability of a corporation. This is due to the restrictions that it will place on research and development activities conducted by a company at any point in time (Decherney, 2007). References Samuelson, P. (2010). Legally Speaking Why Do Software Start-ups Patent (or Not)? Communications of the ACM, 53(11), 30-32. doi:10.1145/1839676.1839687. Savitz, E. (2013). Misconceptions about Software Patents. Forbes.Com, 16. Wilks, N. (2009). The Applicability of the Patent Marking Statute to Software Patents. Intellectual Property & Technology Law Journal, 21(7), 6-11. Paterson, M. (2013). Properly Protecting Code: Solving Copyright and Patent Rights Overlap via Computer Software Suitability in Copyright. Intellectual Property Journal, 25(2), 173. Kumar, H., & Kumar, D. (2011). Protecting software programmes vis-a-vis patentability of software. Computer Law & Security Review, 27(5), 529-536. doi:10.1016/j.clsr.2011.07.011. Samuelson, P. (2013). Is Software Patentable? Communications of the ACM 56, no. 11: 23-25. Seltzer, W. (2013). Software Patents and/or Software Development. Brooklyn Law Review, 78(3), 929-987. Lemley, M. A. (2013). Software Patents and the Return of Functional Claiming. Wisconsin Law Review, 2013(4), 905. Nieh, A. (2010). Software Wars: The Patent Menace. New York Law School Law Review, 55(1), 295-330. Lamoreaux, N. R., Sokoloff, K. L., & Dhanoos, S. (2013). Patent Alchemy: The Market for Technology in US History. Business History Review, 87(1), 3-38. Doi: 10.1017/S0007680513000123. Cohen, J. E., & Lemley, M. A. (2001). Patent Scope and Innovation in the Software Industry. California Law Review, 89(1), 3. Boyle, J. (2009). What Intellectual Property Law Should Learn from Software? Communications of the ACM, 52(9), 71-76. McGill, M. L. (2013). Copyright and Intellectual Property. Book History (Johns Hopkins University Press), 16(1), 387. Decherney, P. (2007). Copyright dupes: piracy and new media in Edison v. Lubin (1903). Film History, 19(2), 109-124. Hughes, J. (2012). A Short History of "Intellectual Property" In Relation To Copyright. Cardozo Law Review, 33(4), 1293-1340. Read More