fhapgood@world.std.com (Fred Hapgood) (08/06/90)
A number of observers of the programming scene are of the opinion that the upcoming flood of software patents, taken together with the recent expansion by the courts of ownership rights in user interface copyrights, will cripple the development of the software industry in this country (and therefore the industry itself). Those interested in reading an especially powerful statement of this position are advised to write the League for Programming Freedom at 'league@prep.ai.mit.edu' and ask to see their papers on software patents and user interface copyrights. While this opinion might be mistaken, it is interesting to see what follows if it is right. Let us assume that over the next five years the climate the patent lawyers are happily building for the programming community proves toxic. What then? The development community would polarize into a 'legal' and extra-legal development culture. The legals would be represented by companies like Lotus, Apple, IBM, AT&T and DEC, who would make software that was clumsy (because of needing to reflect the exigencies of the legal environment instead of good design), expensive, and decades (instead of merely years, as now) behind state-of-the-art. On the other hand will be the 'extra-legal' development culture. The most important thread here will be the freeware/shareware authors. They will be in a position to do whatever they like, because (a) suing them for patent infringements would be pretty fruitless financially and (b) often would impose significant PR costs. (I'd like to by a fly on the wall when the Apple lawyers discuss sueing a 22 year undergrad who is in effect giving the country the benefit of his intelligence.) While there are companies who would sue the fillings out of the teeth of ten year olds, if the programming culture were motivated enough (c) it could slip its products out from behind a veil of anonymity that would be utterly impenetrable. Besides, (d) a serious effort to intimidate shareware programmers might react against the putative intimidator in sixty different ways. Let your imagination be your guide. Second, there will presumably be some offshore software havens somewhere in the world that will repudiate software patents and user interface copyrights and establish a protected zone for software publishing. (This would be a great way for one of the "new" central European countries to make a few dollars.) Third, this might provide occasion to start thinking seriously about programming tools -- computer-aided software engineering. If enough of us are writing programs, and enough of us are violating patents, then it's not a patent violation anymore. Remember what happened to the effort to tax VCRs. In the long run the 'legal' software industry will be so discredited that software patents would go away, perhaps because their relation to their Constitutional purpose, to promote invention, would look ludicrous. But it might be interesting getting to there.