commons / copyright / floss / foss / law / open source / patents

Software and patents

A lot of people who understand and enjoy Open Source Software don’t necessarily realize one of the main problems with the way the Software industry entrenches itself in a way to remove the ability to innovate form the general public and society as whole..

Software is a mutant in the sense that it can be both copyrighted and patented. The article Software ain’t patentable, damn it! (2) points out the difference fairly well while discussing a legal case putting junk patents at risk.

This supposedly bedrock principle of intellectual property and patent law, embedded into the US Constitution, is why you can’t patent music, literature, paintings, etc, but you can copyright them, because they are not “inventions” within the meaning of patent law. And software is no different.

All software source code, whether it be high level, assembly, or pseudo code, ultimately, is just the expression of the steps – an algorithm – to do something. Thus, any software source code can (and will if necessary) be translated into any other language by mimicking the steps expressed in the code.

Imagine if I had written a poem that made your heart flutter. Most people acknowledge I should be able to copyright that to prevent it from being copied and even translated into another language. But what would a patent on a love poem mean? Should I be able to patent the structure of verse and stanza, making all others in the love boat pay me for licensing fees?

I’m probably munging some of the niceties of the differences of copyright and patents, but when you’re mutating them for your gain and to close the commons, that’s what it is all about.

Consider the Trademarking of Islam in Pakistan where the equivalent in the US might be Catholics preventing Mormons from existing as a church because the catholic expression of Christianity recedes it.

But, in understanding law and the differences, the State of Play Academy has some promising non-corporeal classes exploring law and the online world.


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