[PLUG-TALK] Software Patents

[Jeme A Brelin]

On Sun, 13 Feb 2005, M. Edward (Ed) Borasky wrote:
> The point is, our Constitution *clearly* defines rights to what we now 
> call "intellectual property", and it will require a Constitutional 
> amendment to change that.

I think you have been brainwashed into believing the current 
interpretation of the Constitution's one tiny provision for the 
POSSIBILITY of exclusive rights is both a mandate and only possible to 
interpret in one way.

The reference in the Constitution to which you're referring (for those who 
want to follow along) is in Article I Section 8 which defines the powers 
of Congress.

First and foremost, these Clauses contain a comprehensive listing of those 
things that are within the power of Congress.  There is no mandate in this 
listing.  By that, I mean that the Constitution states that Congress HAS 
this power, but not that Congress MUST EXERCISE this power.  While these 
clauses are intended to limit the power of Congress, they have found 
clever ways to sidestep the limitations and provide exceptions for monied 
interests.  (The bit that forbids appropriation of funds in support of 
armies for any period longer than two years is a fine example.  Military 
pensions paid from federal funds, then, should be illegal.  The provision 
for Post Offices and post Roads was broadly interpreted to support the 
creation of the Interstate Highway system which should also be illegal.)

Let's take a look at the clause which provides for both the Copyright Act 
and the creation and maintenance of the Patent Office.

[Each Clause in this Section is implicitly prefaced with the 
phrase "The Congress shall have the power".]

Clause 8: To promote the Progress of Science and useful Arts, by securing 
for limited Times to Authors and Inventors the exclusive Right to their 
respective Writings and Discoveries;

[Note that this clause does NOT cover the creation of either trade secret 
law (which is mostly the law of the several states, but not a concern of 
federal government) nor the provisions for trademark -- both of which are 
lumped into the unnatural category of "intellectual property".]

The monied interests have run a highly successful propaganda campaign to 
promote and embed a particular interpretation of this clause in the minds 
of the public.  I believe this interpretation, while used conveniently in 
the halls of power, is not at all consistent with the wording nor with the 
intent of the clause.

Note that this clause (unlike ALL of the others in Article I Section 8) 
grants a power to Congress and then further suggests the particular WAY in 
which Congress can exercise it.

This clause grants the Congress power to promote the progress of science 
and the useful arts.  If indeed there is a mandate, this is it.  Should 
they choose to do so, it might grant exclusive rights to authors and 
inventors to writings and discoveries.

When I read this clause, I see a clear and intentional use of analogy to 
combine two similar but distinct types of protection (by the use of 
respective pairing) into one clause.  Consider the following sentence:

Charles Foster Kane and William Randolph Hearst lived on estates called 
Xanadu and San Simeon in Florida and California.

With a little context, this sentence makes perfect sense and doesn't imply 
that the two men lived together in two different houses that were each in 
two states.  There is a respective pairing that relates 
"Kane-Xanadu-Florida" and "Hearst-San Simeon-California".

Similarly, Clause 8 shows respective pairings of 
"Science-Authors-Writings" and "useful Arts-Inventors-Discoveries". 
Science is not set down by Inventors and Authors don't make Discoveries... 
at least not in the sense intended here.  The first element of each 
ordered pair grants provision for a Copyright Act and the second element a 
Patent Office.

The Copyright Act should, by this reading, only cover writings in 
scientific fields.  This makes sense because those are exactly the kinds 
of writings that can cause the most damage to society when they are 
reproduced improperly or out of context.  We, the people, then, have a 
real interest in voluntarily suspending our free and natural right to 
share information so that the authors of these scientific writings can 
assure the future that their work is being reproduced faithfully. 
Furthermore, this exclusive Right (and this word is used in the 
Constitution in a different sense than the one I used in the previous 
sentence -- more on that if needed) could simply cover authorization of 
editions of the work and identical duplicates of authorized editions could 
be seen to inherit authorization.  The public harm only comes when works 
are NOT duplicated identically and the author's work is potentially 
misrepresented.

The claim that the Copyright Act should cover works of fine art is 
completely unfounded.  The term "useful Arts", in those days, was used in 
contrast to the "beaux Arts".  This distinction was common and persists 
today in our distinction between fine and liberal arts as well as the arts 
of trade.  The useful arts include carpentry, masonry, structural 
engineering and even computer programming.  The beaux arts include poetry, 
sculpture, architecture, (decorative) painting, and even acting.  It is 
and always has been among the primary societal benefits of the fine arts 
to comment upon culture and society -- to act as a mirror that reflects 
the way we live, think, and act -- so that we might give pause and 
reconsider or appreciate the choices we make.  The restriction of the 
distribution (and derivative synthesis) of fine arts restricts society's 
ability to reflect upon itself and make subtle progress.  Instead, the law 
of today promotes originality by punishing modification of existing works 
of art.  The result is a constant push to the extremes of audacity and 
taste because refinement is potentially derivative and legally actionable.

Patent can also be interpreted narrowly and effectively without any 
changes to the Constitutional provision.  Recall that patent is a social 
contract by which the public gives up its right to produce and distribute 
an invention itself for a short time in exchange for full disclosure of 
the invention's workings and processes for the mutual instruction of all. 
Essentially, it's a method for mitigating the unfortunate risks imposed by 
the state's prefered economic system on doing good works and benefiting 
others.

With this understanding, software CANNOT be the subject of patent. 
Patent restricts the production and distribution of an invention in 
exchange for the public's ability to produce and distribute a detailed 
description of the invention and how it works.  Software is... soft. 
There is no difference between the invention itself and a complete and 
detailed description of the invention and how it works.  Hence, the 
exchange cannot take place and the barter of patent is inapplicable.

Interestingly, the Patent Office has done a much better job adhering to 
the principles of Clause 8.  The concept of "invention" has stayed more or 
less consistent through the centuries and only the inclusion and 
broadening of the concept of patentable "processes" has tainted the law. 
In practice, however, the rate of technological development and the 
extreme lucrativity of some patents has made the administration of the 
agency a complete mess.  Combining this with the expansion of firms both 
horizontally and vertically, we see that the cost of entry into most 
fields of invention has gotten far beyond the reach of individuals and 
smaller organizations.  The result is a select few that stifles innovation 
in order to squeeze every drop from their state monopolies.

> Given the notable lack of success of both conservative-sponsored and 
> liberal-sponsored amendments in the past 30 years or so, I'd say 
> intellectual property and its associated "battery of white-lipped 
> attorneys" is with us for a while.

As I've demonstrated here, we don't have to modify the Constitution in 
order to modify our implementation of the so-called "intellectual 
property" protections.

J.
-- 
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      Jeme A Brelin
     jeme at brelin.net
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