The patent poison spreads

Those whom the gods would destroy, they first make mad — or software developers. None but a madman would consider writing programs these days. The activity itself remains mostly harmless, but it's becoming increasingly impossible to hack through the mutated jungle of intellectual-property law without fear of being eaten by feral lawyers.

Take software patents, which daily seem more and more perverse. Not only do they threaten the ability of people to write original code and distribute it as they see fit, they effectively prevent people from commercialising open source software even when the writer is happy for this to happen and the patent holder has said that open source use is fine.

There is a misapprehension, encouraged by industry worthies such as Jonathan Schwartz of Sun, that open source in general and the GPL in particular is a wholesale abdication of rights by authors. Nothing could be further than the truth — it, like the Creative Commons scheme, involves an explicit statement of those rights. Nothing is lost. A software writer can simultaneously license their work under the GPL, which commits those who extend or modify the code to follow the same rules, and license exactly the same software for closed development to those who want to incorporate it in a proprietary product.

Thus, even under the GPL, open source development doesn't just enrich the free software community, it feeds back into more traditional business models. If you don't want it free, you're welcome to pay. Other open source licensing models are even more liberal — BSD imposes next to no restrictions on commercial or open use of code — if that's what you want.

Patents break this model. IBM has released hundreds of them to open source developers, which is a welcome commitment. But that means the code can never go into proprietary form: IBM would have to make its patents available to anyone to do anything for that to work, at which point the patent might as well not exist. Even with the best will in the world on all sides, patents are fundamentally incompatible with the essential traffic in ideas that keeps software progressing.

We have never denied the importance of intellectual property, nor the appropriate protection of such rights. But these must include an acknowledgement of the rights of the community: patents are designed to do this for inventions, but do not work for software. They are poisonous. They benefit lawyers and patent agents, but send the rest of us into fits of despair.

Without a wholesale reform of the law and the introduction of a protection regime designed to fit the unique nature of software development, we will lose the freedom to innovate. What that reform should be is open to debate: that it is needed, is not.