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As many of you know, I am an avid programmer. In fact, I spend most of my free time programming, and lately have been quite active in the development of a simple first-person shooting game (like ?Giants?, but not as complex). As a result, I have become very active in many programming groups as of late, and today I was joining in the discussion of software patents.
For years, I knew of some software patents, particularly the one that makes it illegal for me to use the ?gif? image format in any of my software, but I had never been that worried about it before; after all, there are other image formats, right? I have always had faith in the U.S. Government in general, and thought that patents were restricted to very specific algorithms and methods of doing things ? so specific, in fact, that the chances of me reinventing one of them would be next to impossible.
The truth of the matter, as I am sad to discover, is quite the opposite. As it turns out, somebody has already patented just about every line of code in every program I have ever written. My eyes grew wide and my jaw dropped as I began to look through some software patents? I would not have believed such ignorance, such stupidity? There is a patent which covers the transfer of music over the internet using a server to a client (such as is the case when you visit a web site that has music playing, or download an MP3), and that is not even the worst! Every year, there are over 100,000 software patent applications.
The patent system has been used for over a hundred years as an incentive to foster innovation by protecting inventions from being copied after release. In order for a patent to be accepted, it must not be obvious, which is what makes an innovation an innovation. Historically speaking, this system has worked surprisingly well for real-world inventions. There is a major difference, though, between ?real world? and digital inventions? and that is the simple fact that the vast majority of low-level components that we use in products were invented well before the patent system, and were invented over the course of thousands of years.
Software, on the other hand, has existed solely since the inception of the patent system, and as thus, every tiny little aspect of it has been fought over in the patent office. Some of these patents are the digital equivalent to paper ? obvious, and in common use. Not only that, but software innovation occurs with each and every product ? that is, after all, why we aren?t all still playing Doom 1. Unlike the real world, software is nothing BUT ideas ? ideas that must be improved to stand out from the competition.
Unfortunately, the patent office deems just about every software patent as being ?not obvious? since the people sitting at the desks stamping ?approved? on incoming applications do not have the foggiest clue as to how to wrap their minds around the very verbose and blatantly padded descriptions. The music one I told you about above is several pages long because it includes all kinds of small details which make it sound complex, but in practice, are unbelievably common ? they go so far as to mention that their idea is unique because they plan to store the music on hard drives on the server, and plan to distribute it over the? wait for it? INTERNET! Of course, they say that in as many big words as possible.
So why are we not hearing about this in the news more often? Why are big corporations not folding as a result? Well, they are beginning to. You see, the vast majority of these patents are not being made to protect the work of the author; they are being made to attack anyone who stumbles across the same idea several years later. Activision went bankrupt when another company sued them for violation of their patent which covered the use of pixel-based collision detection, and that is just one of many such companies that have fell. Look up some of these cases; rarely do you see the aggressor in a lawsuit that actually uses the technology they patented!
A lovely example is AVG (not the anti-virus people, but ?American Video Graphics?), a practically unknown company that patented the idea of displaying 3D graphics on a 2D screen and allowing panning and zooming in 1987. Well, guess what? Just about every game made in the 90?s, and by far the vast majority made since, have been 3D games displayed on 2D screens? but did AVG bother pointing out their ownership of the patent, or worry about losses they were accruing as a result? No. They waited until last year to file a lawsuit against every major game publisher in the nation and threaten a good many more developers as well. If they win, you will never again see a 3D game or application made by a small company or lone developer ? you will have to pay them a patent licensing fee to develop any such thing.
With the billions of dollars behind the companies they are suing (which includes heavy-hitters such as EA and Ubisoft), you can bet they will not win ? they bit off way more than they could chew. Usually, though, it is the other way around ? you see big corporations that sit on technologies they do not even use, waiting to use it against some small start-up that might potentially compete with one of their other products, then bang, dead.
It is not even limited to potentially threatening software companies, anymore, though! Oh no, even free open-source software is beginning to be attacked. They have nothing to lose ? no money behind them, but their mere existence is a threat, and as a result, they are being bombarded by more and more lawsuits that threaten their web hosts and make their development in general less than flourishing. Forget starting your own software company that actually sells a product ? if you are remotely popular enough to make a ?bleep? on someone radar, say goodbye to your hard work. You may fight one or two off, but they will eventually win.
I was pleased to discover that, at least, Europe did not support such idiocy. No, they do not acknowledge software patents, so development there is flourishing? that is why you are beginning to see some innovative stuff come from Europe ? they do not have to walk through the minefield of patents every time they start a project. Then I found out that this will not be the case for much longer ? the European Union is deciding soon (Monday?) whether to allow them or not ? and in order to continue not supporting them, they will need an absolute majority ? something that likely will not occur.
So what will happen? Nothing? yet. Companies are waiting until their patents are in wide-spread use, and that is just now beginning to happen for those that began back in the 80?s and early 90?s? Soon, though, it will nail the coffin shut in the software industry. No new software companies, no major innovations? it will be the dark ages all over again, but for software engineers such as me. Small companies are being attacked as we speak, and it will not be long before even hobbyists in basements writing shareware will become targets.
Look at your pile of CDs next to your computer? how many of them contain software from EA? Microsoft? Sony?... how many are from small developers?... It is hard enough to be a small developer as it is, and being abandoned on a legal minefield is bound to destroy the chances of even the brightest college students who do not want to become employee of the month at a big corporation.
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