In Unfriended: The Dark Web, Matias creates a new software called Papaya. This is an example of intellectual property because the software isn’t tangible; it’s an invention of the mind. To protect Papaya from being stolen, Matias should get a software copyright for it. The book defines a copyright as “how the US government provides authors with certain rights to original works that they have written” [2]. The Patent and Trademark Office started issuing software copyrights in 1964 under the reasoning that “a computer program is like a ‘how-to’ book” [2]. Matias should get a software copyright for Papaya because without it being copyrighted, “anyone has the right to make use of” it [2]. He wouldn’t be able to stop people from using or selling the invention without his permission. A software copyright will give him the right to reproduce his software and distribute it as he pleases. Having a software copyright allows him to profit from all the hard work he’s put into developing Papaya.
Matias could also get a software patent to protect Papaya; however, getting a software patent is controversial. The book defines a patent as “how the US government provides intellectual property protection for a limited period of time to creators of machines, systems, and other inventions” [2]. Patents only last 20 years, after which they become free-use to the public [2]. The Patent and Trademark Office started issuing software patents later than software copyrights, in 1981 [2]. There is a major issue with software patents: the Patent and Trademark Office is issuing too many [2]. Because software patents started being issued years after a “significant amount of software was written, patent examiners have issued many ‘bad-patents’” [2]. These include patents for universal and broad code that many programmers could put in their software. This has caused a wave of lawsuits between software companies over infringement, “thousands of patent lawsuits are filed in the United States every year” [2]. When a company creates a new product that includes software, they are at a high risk of getting sued for using software that another company owns a patent for [2].
In a petition to the Obama administration, 14,862 U.S. citizens signed a document requesting the Patent and Trademark Office to stop the issuing of software patents and to void all current software patents [3]. The document states, “Under the patent office's current activity, patents have become a way to stifle innovation and prevent competition rather than supporting innovation and competitive markets. They've become a tool of antitrust employed by large companies against small ones” [3].
How do we fix this software patent issue? An article by Monica Goyle suggests that some valid “solutions include streamlining the patent process, making it more difficult to patent software innovations, making it easier to invalidate software patents, and shortening the patent protection from 20 to 10 years” [3]. However, the Patent and Trademark Office ‘“leans pro-patents” and may not be willing to fix this patenting issue [1]. In conclusion, there exists no easy solution to this software patenting issue, and it will take time for change to happen.
Resources:
Eric Goldman, Two Challenges to Fixing Software Patents, (Forbes, Dec. 11, 2012) https://www.forbes.com/sites/ericgoldman/2012/12/11/two- challenges-to-fixing-software-patents/?sh=27a264d3ec98 (Oct. 9, 2022).
Michael J. Quinn, Ethics For The Information Age (8th edition) (Pearson, 2020), 437, 439, 495, 502, 504.
Monica Goyal, Software Patents: Current Challenges and Future Solutions, (Talent First Network, December 2011), https://timreview.ca/article/503 (Oct. 9, 2022).