Thursday, 4 January 2007

A Court Case I Want Microsoft to Win

by Charles Pooter

The Supreme Court of the United States has agreed to hear a case brought against Microsoft by AT&T. The details of the case can be found here. AT&T have accused Microsoft of patent infingement for shipping Microsoft's own (allegedly patent-infringing) software abroad. Quite apart from the issues brought up by the extra-territoriality of the alleged infringment, the most interesting (and potentially revolutionary) apect of the case is Microsoft's defence. Microsoft has essentially asked SCOTUS to decide if computer code is patentable. This is hugely ironic as large swathes of Microsoft's income depend on its huge portfolio of software patents.

I hope Microsoft wins this case as software patents are a bad idea. As Kevin Carson is always saying, patents are a hidden subsidy to larger organisations (typically multi-national corporations). They are Government granted monopolies that stifle innovation from new market entrants. This is especially true of software patents.

Software is already covered by copyright and therefore, for example, Microsoft can sue someone who sells an unlicensed copy of Microsoft Word. In fact corporations have successfully lobbied states into making copyright infringment a criminal offence in many territories, therefore externalising the costs of enforcement. But copyright is a different debate, software patents are much, much more draconian. Patents allow corporations to have a monopoly on a computing concept or algorithm, not just a particular implementation. For example, there is a patent on the algorithm for encoding an MP3 file. This means that the owners of the patent can sue anybody who writes and sells an alternative computer program that can encode an MP3 file even if the programmers independently solve the mathematical problems involved and write the program from scratch themselves. This means that most distributors of Linux dare not include a free MP3 encoder in their distributions, even if the creators of those encoders are happy for them to do so.

Traditionally courts have recognised the unpatentable nature of works of the imagination, including software. The Software Freedom Law Center's (SFLC) in its amicus brief to the Supreme Court for the above mentioned case said:

"Since before the Civil War, this Court has consistently made it clear that subject matter which would have the practical effect of preempting laws of nature, abstract ideas or mathematical algorithms is ineligible for patent protection."

However, via various slimy lawyerly fudges, software patents have gradually come to be recognised by precedent in the US, even if they have never been protected explicitly by legislation. Using WIPO, US corporations have pressurised many other territories into implementing this bad idea around the world. For example, there have been several concerted pushes by corporate lobbyists to get software patents recognised in Europe.

So, let us wish Microsoft well in this case. If they win it, it will be a blow for software freedom and a blow against their patent portfolio.

Via Free Software Magazine

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