During his OSBC keynote, Eben Moglen said that “Science must be free. Knowledge must be free. Let freedom ring.” This parallels the argument he’s made in the past that patent software is akin to patenting math.
This is compelling rhetoric, and demonstrates Moglen’s abilities as a lawyer. But rhetoric is a double-edged sword, in that it can be put in the service of logic and truth — JFK or Martin Luther King come to mind — or in opposition to logic and truth. I believe Moglen’s rhetoric falls in the latter category.
There are two main flaws in Moglen’s arguments. First, he confuses knowledge with invention. My undergrad degree is in Physics, so I know first-hand the huge difference between Physics and Engineering. Our purposes were different, our training was different, our culture was different than the Engineering students down the hill at UCLA. The goal of the physicist is to further knowledge without any thought to its immediate usefulness. It’s rare that any new discovery in Physics has any commercial application within the twenty-year period of patent protection. Engineering’s goal, on the other hand, is to make things that solve an immediate problem, often a commercial one. They couldn’t be more different.
The same difference is found between theoretical and applied mathematics. When Calculus was invented by Isaac Newton, it had no commercial application. On the other hand, figuring out how to perform real-time Fourier transforms to compute 3D distance readings from sound echoes hardly advanced the state of mathematical knowledge, but it did make sonar possible.
Invention, and knowledge, two entirely different things that Moglen lumps together. Knowledge is free, always has been, and that didn’t change with software patents. Invention, a commercial activity, has historically been protected for a short period of time. I don’t know if Moglen deliberately confuses these two categories, or just doesn’t understand the difference, but either way, it’s a shame.
As a result of his confusion of knowledge and invention, Moglen implies that true invention must be instantiated in a physical invention, since any innovation instantiated digitally, according to Moglen, is not invention but knowledge. He is selling software short. Is invention any less deserving of protection because it results in software rather than a physical contraption? Software engineers should take offense at that implication. They are no less inventors, or innovators, than someone building a new hybrid engine or a nano drug delivery device. His artificial conflation of invention and knowledge leads to a necessary short-changing of digital invention.
What’s a shame is that Moglen doesn’t need to use these rhetorical excesses to make his case. His view is, at bottom, an ethical argument based on â€œthe way things ought to beâ€ rather than a utilitarian argument. But patent law isn’t meant to instantiate any moral construct; it is solely a pragmatic balancing act between the need for society to incentivize invention while allowing invention to be utilized broadly by society. Property fundamentalists on both the right and left argue for or against patents from moral principles, but the law does not.
Ultimately, the question regarding software patents is a utilitarian one: do they benefit the common good? This is where software patents fail miserably. The big software vendors, my employer included, file for software patents in a bizarre process of patent proliferation to make sure that their competitors infringe on as many patents as they infringe of theirs. Everyone is infringing someone else’s patents. Patents impose a financial burden on innovation rather than a financial incentive to innovate. They don’t work.
This is why software patents are a bad idea: in a strictly utilitarian analysis, they are not only unnecessary, but counter-productive.
It’s a shame that Moglen, Stallman and the FSF argue against software patents on moral grounds using inapt analogies like “knowledge = invention” and â€œsoftware = mathâ€ when the utilitarian arguments are much more compelling and easily embraced. But the FSF is an ideological movement, and not a practical one. As a result, they hurt their cause as much as help it.