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Math You Can't Use

Math You Can't Use: Patents, Copyright, and Software

Ben Klemens
Copyright Date: 2006
Pages: 181
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  • Book Info
    Math You Can't Use
    Book Description:

    This lively and innovative book is about computer code and the legal controls and restrictions on those who write it. The widespread use of personal computers and the Internet have made it possible to release new data or tools instantaneously to virtually the entire world. However, while the digital revolution allows quick and extensive use of these intellectual properties, it also means that their developers face new challenges in retaining their rights as creators. Drawing on a host of examples, Ben Klemens describes and analyzes the intellectual property issues involved in the development of computer software. He focuses on software patents because of their powerful effect on the software market, but he also provides an extensive discussion of how traditional copyright laws can be applied to code. The book concludes with a discussion of recommendations to ease the constraints on software development. This is the first book to confront these problems with serious policy solutions. It is sure to become the standard reference for software developers, those concerned with intellectual property issues, and for policymakers seeking direction. It is critical that public policy on these issues facilitates progress rather than hindering it. There is too much at stake.

    eISBN: 978-0-8157-9795-1
    Subjects: Technology, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Preface
    (pp. vii-x)
  4. CHAPTER ONE Introduction
    (pp. 1-11)

    How should software be protected from undue imitation and plagiarism? At present, all of the traditional means of protecting intellectual property (IP)—patents, copyright, and trade secrets—are applied to software in one manner or another, and the U.S. Congress has even invented a new type for cases in which these may be insufficient, via the Digital Millennium Copyright Act.

    Software is not just like any other machine, as some courts have ruled, and it is not justHamletwith numbers: it is a functional hybrid that can be duplicated at no cost, is legible by computers in some forms...

  5. CHAPTER TWO Optimal Breadth
    (pp. 12-23)

    The foremost economic question surrounding patents and copyright is how much territory they should cover. Part of the answer lies in the function that patents serve, which is to enable the inventor to recoup profits from up-front investment in research. One person or company may invest the money to develop and test a new method or machine, but once research results are made public, competitors can use them with a significantly smaller investment. With multiple competitors providing identical products, the unit price for the product will fall until it is near the cost of producing that unit—meaning the immediate...

  6. CHAPTER THREE From Equations to Software
    (pp. 24-43)

    There is no magic or genius to the process of programming, just small components built upon larger structures, and then still larger structures built upon those. Isaac Newton explained that he progressed by standing on the shoulders of giants, but perhaps a more appropriate metaphor for software development is that modern computing rests on the back of a giant turtle, which rests on the back of another turtle, which rests on another turtle. . . .¹

    I have come to realize, over the course of many parties and dates, that some people do not like hearing about the details of...

  7. CHAPTER FOUR Patenting Math
    (pp. 44-72)

    Imagine a continuous line of inventions, with physical machines built from transistors and diodes at one end and pure mathematics at the other end. Any given piece of software falls somewhere along this spectrum. The line between the patentable and unpatentable items along this continuum should meet three basic criteria: physical machines should be patentable subject matter, pure mathematics should not, and whatever distinction is made between the two categories should be clear and unambiguous.

    Software may not fit the U.S. Code’s definition of patentable subject matter for two main reasons. The first is that software is math, and it...

  8. CHAPTER FIVE Profiting from Overbroad Patents
    (pp. 73-91)

    What’s wrong with the system of software patents that the courts have put in place? One set of problems stems from weaknesses in the patenting process that could be remedied by revised policies or more resources at the U.S. Patent and Trademark Office (USPTO), while other fundamental issues are rooted in the nature of software and software patents.

    First, software patents are too broad, and unavoidably so. Since software patents typically apply to the broad description of an idea—the interface instead of the implementation—they can block competitors from developing and marketing hundreds of alternative implementations. Second, as explained...

  9. CHAPTER SIX The Decentralized Software Market
    (pp. 92-107)

    The world of software engineering is in no way restricted to software companies. Beyond Microsoft or thousands of smaller software vendors, almost every corporation in the world keeps a stable of programmers in the basement to write little scripts that move the company’s e-mail and make the “add to cart” button do what it should. I am a programmer because I write simulations and statistical analyses. Even you are a software programmer if you use the Record Macro feature of your spreadsheet or word processor.

    The variety in types of software producers engenders two distinct methods of pricing software. One,...

  10. CHAPTER SEVEN Interoperability
    (pp. 108-130)

    Interoperability refers to the ability of one vendor’s products to work with the data or interface from another vendor’s products. Suppose that DBA Corp. writes a suite of programs to create databases, with a back end to do the bookkeeping and a front end to enter data. Then DBB Corp. writes a new front end that can read, write, and modify DBA-formatted files—and that has animated characters and thus sells much better than DBA Corp.’s front end. DBA Corp. had intended to sell both front and back ends and perhaps had priced its back end cheaply in the hopes...

  11. CHAPTER EIGHT Protecting Text
    (pp. 131-150)

    Two of the most common and sensible solutions to the problems with software patents rest on the basic principle that protection should be granted for an implementation, not an idea. For a program, that means protecting the text of the source code.

    The first, relatively moderate solution is to patent the source code instead of vague descriptions or flowcharts. The second is to eliminate software patents entirely and protect the text of software only by copyright. However, because copyright is designed around fields such as literature, the visual arts, and music, it needs some modification in order to apply to...

  12. CHAPTER NINE Policy Recommendations
    (pp. 151-160)

    The Federal Trade Commission (FTC) is in the business of preventing overbroad monopolies. Of late, the U.S. Patent and Trademark Office (USPTO) has been granting overbroad monopolies. In October 2003, in the spirit of its mandate, the FTC published a report stating recommendations to reform the patent system.¹ Here are two that reflect the FTC’s desire to have the patent system focus more on maximizing total economic benefit:

    Recommendation 6:Consider possible harm to competition—along with other possible benefits and costs—before extending the scope of patentable subject matter.

    Recommendation 10:Expand consideration of economic learning and competition policy...

  13. Glossary
    (pp. 161-166)
  14. References
    (pp. 167-170)
  15. Index
    (pp. 171-181)