Patents are no place for secrets

A company has stifled reports of security vulnerabilities though patent threats. Time for fair use in patent law

It's time for another Black Hat security conference in the US — so it must be time for another clash between free speech and money. And here it is. "RFID is flawed", says Chris Paget, a researcher. "Let me show you how."

"No you won't," says HID, an RFID manufacturer. "If you build something that shows that, you're violating our patents." Cue lawyers, outrage and a cancelled talk — and the ironic realisation that if Paget had used a modified HID product instead of building his own, no such violation could have been claimed.

Companies will use whatever tools they have to hand to protect their business interests: legality, not morality, is normally the only thing that worries shareholders. So HID is not to be censured for acting in what it sees as its own best interests, even if the long term implications are that its flaws will only be tested in secret by criminals and mobsters. Only it can decide whether that is better than open exploration by respectable researchers, and only the market can decide how this will affect the desirability of HID's products.

However, we are in no doubt that it is in the public interest to explore the claimed security of systems on which safety and commerce depend. It should not be possible to use patent law to gag legitimate research in that interest: patents are intended to put public interest and the open dissemination of information before everything else. They are inappropriate tools to deny it.

In copyright law, there is the concept of fair use. You can reproduce a reasonable amount of material without the permission of the copyright holder for purposes of review, education or demonstration. Exactly what defines fair use is a fair question, and not one that lends itself to a simple formula; nonetheless, it is a very useful and practical notion.

This should be extended to intellectual property law as a whole. The alternative is to give patent owners the right to close down research in areas they don't like, especially given the usual disparity in disposable income between commercial organisations and investigators.

Patent law is in the process of being reborn, with courts, jurists and governments all keenly aware that the old systems are not serving us well. We must take this opportunity to redress the balance of power in cases like this. Patents are guardians of openness, not hiding places for errors.