The Problem With Software Patents

The developer behind Winamp and the gnutella network thinks that we shouldn't be able to patent something that is essentially just math. Software, like DNA, is so abstract that it should be everybody's intellectual property.
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TRANSCRIPT

Question: Why are software patents so controversial?

Justin Frankel: There are a lot of people who are for them and a lot of people are against them.  It seems that most of the people who are for them are essentially IP holding companies who just sit around and wait with patents and wait until technology actually gets interesting, using something that could potentially be covered by these patents, and then they sue people.  And they don't... generally they don’t sue small companies, they sue Microsoft and IBM.  And of course, IBM and you know, like all these big companies have their own patents pools and they use them as leverage against other companies with patents. 

But I just, you know, I think there are so many problems with it.  The biggest problems are that you have people patenting things that are essentially math, which is what patents are not supposed to be even about at all.  And the... I mean, there are other problems.  There are no—I don’t know.  It’s—I’m usually drunk when I give this explanation, and it comes out so much smoother. 

I just think that they are a big problem largely because you can infringe on them without knowing that you do and as a small company you have like very little—you don’t have resources to go and research whether or not you do.  I could write a 100,000 lines of code and for all I know, 50,000 of them infringe on various things.  And I wouldn’t know that.  And normally if you infringe someone's like trademark, for example, if they don’t enforce it it's to your advantage, because they start to lose their rights.  Whereas patents, if they don’t enforce it for ten years, they can come and sue you for the ten years that you’ve been making money on your patent, and you're completely screwed.  So, there's no incentive for them to actually go and try to legitimately license it. 

It's really the kind of thing where there are probably some middle ground where it makes sense to have things be patentable. Obviously in many places it does make sense.  But thinks like software and people patenting DNA, it’s at the point where you have things that are so abstract that they really should belong to everybody.  And no one's really making viable businesses on software patents.  The only thing they’re doing is extorting money out of other people.  And the people who have the most software patents probably don't even want them to exist; they’re forced to do it to cover their own asses. 

Recorded on June 21, 2010
Interviewed by Jessica Liebman