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| Authored by: Anonymous on Saturday, April 28 2012 @ 08:06 PM EDT |
I fear that you have some kind of nostalgia about a golden age of software
copyright before software patents became common. Maybe you're only thinking of
the time between 1976 and 1980 when computer programs were not subject to
copyright protection in the US? Maybe you think that something has changed
since the US caught up to the rest of the world and signed the Berne Convention
in 1988? I'm not really sure, but your starting point of 1976 certainly
predates the applicability of copyright to software.
I would certainly
agree that when copyright did not apply to software (pre-1980) there may have
been a kind of "golden age" of sharing of code, ideas, etc.. But things did
change after that. For example, once copyrights were granted in computer
programs, a certain man was unable to modify his printer driver due to copyright
restrictions. Eventually a kind of copyright judo to defend against this new
imposition was developed. I'm sure you know the story.
In regards to
proliferation of operating systems - I think that the very standardization that
you pointed to as a good thing (and I agree) is what led to our current choice
of more-or-less two possible operating systems (if you lump all *nix-ish systems
into one - if you don't we have as many choices today as we did for the
Commodore 64, if not more). Standardization is not always a good thing - it can
lead to monoculture with all its attendant a problems, although of course it
doesn't have to, and it can be quite useful in other ways.
I'm not saying
that things didn't get worse in the US after State Street, I'm just saying that
things were already bad, and in the rest of the world where software patents are
few and far between they remain bad in this regard. I think that maybe you've
looked at the downright awful situation in the US over the last seventeen years
and idealized the time before that. Just because it was relatively better, does
not mean that it wasn't bad. Microsoft's monopoly was built on copyright (and
unfair business practices, to be sure), not on patents.
After all,
copyright on software gave us cases like:
- Whelan v.
Jaslow
- Computer Associates v. Altai
- Apple v.
Microsoft
- Lotus v. Borland
- USL v. BSDi
- SCO v.
IBM
- etc..
None of these expensive and needless cases had
anything to do with patents.
If you want a good example of the problems
that copyright on software is still causing in places that don't allow software
patents, try SAS
v. WPL which is currently awaiting a ruling from the ECJ.
I happen to
agree with you that SSO is not a reasonable way to protect software, but it's
not likely to go away any time soon. I also don't like the AFC
(abstraction-filtration-comparison) test. I don't think that either copyright
or patents are appropriate. I'd rather see something where I can look at, learn
from, reproduce, and reuse the functional parts of your work (the math, IMO)
without having to wait a hundred years to do it, and without fear of a
lawsuit.
I haven't entirely thought it through, but some kind of unfair
trade practices legislation and protection of products, not code or
functionality, and for a very limited time (no more than five years? three might
be reasonable) makes much more sense to me.
Regardless, it's clear that
although things are worse right now in the US due to software patents, things
were bad before that (post-1980), and they continue to be bad elsewhere in the
world. The problem is one of global scale as copyright protection of computer
programs in enshrined in quite a few treaties, and so any solution must be one
that can be adopted globally.
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