Intellectual property and software: the nuclear option

There are many problems that arise from thinking about the ownership of software and its design. Organisations like the Free Software Foundation and Open Source Initiative take advantage of the protections of copyright of source code – presumed to be a creative work analogous to a written poem or a painting on canvas – to impose terms on how programs derived from the source code can be used.

Similar controls are not, apparently, appropriate for many proprietary software companies who choose not to publish their source code and control its use through similar licences. Some choose to patent their programs – analogous to a machine or manufactured product – controlling not how they are used but the freedom of competitors to release similar products.

There is a lot of discomfort in the industry with the idea that patents should apply to software. On the other hand, there is also distaste when a competitor duplicates a developer’s software, exactly the thing patents are supposed to protect against.

With neither copyright nor patent systems being sufficient, many proprietary software companies turn to trade secrets. Rather than selling their software, they license it to customers on the understanding that they are not allowed to disassemble or otherwise reverse-engineer its working. They then argue that because they have taken reasonable steps to protect their program’s function from publication, it should be considered a trade secret – analogous to their customer list or the additives in the oil used by KFC.

…and some discussions on software ownership end there. Software is a form of intellectual property, they argue, and we already have three ways to copy with that legally: patents, copyright, and trade secrets. A nice story, except that we can quickly think of some more.

If copyright is how works of art are protected, then we have to acknowledge that not all works of art are considered equal. Some are given special protection as trade marks: exclusive signs of the work or place of operation of a particular organisation. Certain features of a product’s design are considered similarly as the trade dress of that product. Currently the functionality of a product cannot be considered a trademark or trade dress, but what would be the ramifications of moving in that direction?

We also have academic priority. Like the patent system, the academic journal system is supposed to encourage dissemination of new results (like the patent system, arguments abound over whether or not it achieves this aim). Unlike the patent system, first movers are not awarded monopoly, but recognition. What would the software industry look like if companies had to disclose which parts of their products they had thought of themselves, and which they had taken from Xerox, or VisiCorp, or some other earlier creator? Might that discourage Sherlocking and me-too products?

There’s also the way that nuclear propagation is controlled. It’s not too hard to find out how to build nuclear reactors or atomic weapons, particularly as so much of the work was done by the American government and has been released into the public domain. What it is hard to do is to build a nuclear reactor or atomic weapon. While the knowledge is unrestricted, its application is closely controlled. Control is overseen by an international agency, part of the United Nations. This has its parallels with the patent system, where centralisation into a government office is seen as one of the problems.

The point of this post is not to suggest that any one of the above analogues is a great fit for the problem of ownership and competition in the world of software. The point is to suggest that perhaps not all of the available options have been explored, and that accepting the current state of the world “because we’ve exhausted all the possibilities” would be to give up early.

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