Rights

God Given?

Many people forget that our "rights" are not some intrinsic god-given thing that we are entitled to "because we are human"; they are constructs arranged between members of a society so that they can -- on average -- live happier lives.

• Ownership is one such societal construct, whereby members of that society agree not to appropriate objects that others have expended effort in creating without providing a commensurate return.

  This was recognised in cave-man times.

• Real estate is a right granted by a society as a whole to a particular holder so that a farmer would be encouraged to plant or otherwise invest their time and effort into crops if they knew they would get the returns at the next harvest; a reliable foodsource is essential to a stable society.

  It also encouraged people to invest the effort in building permanent dwellings which are more resistant to storms, knowing that they would have unencumbered tenure; this also stabilises society.

  This was recognised by early agricultural societies, but became strangely unfashionable when kingdom-states raised standing armies that could conquor and hold land.

• Trademark is a right granted by a society as a whole to a particular holder so that all members of that society would know with whom they're dealing whenever they encountered the trademark.

  This was recognised in classical times, although I don't know when it actual acquired the force of law; I suspect much later.

• Patent is a right granted by a society as a whole to a particular holder so that there would be a benefit to that society as a whole -- new inventions don't get locked up as trade secrets if their inventors can get a profit for a limited time without having to spend all their time worrying about other people discovering their secrets. This also acknowledges the time and effort it can take to make a discovery.

  This was recognised in later renaissance times -- it's the basis of one of the articles of the American constitution.

• Copyright is a right granted by a society as a whole to a particular holder so that there would be a benefit to that society as a whole -- new creative efforts are encouraged if their creators can get some return for their efforts.

  This was recognised in law by the Berne Convention early in the 20th century.

So, now we must ask, what benefit accrues to the rest of society in the granting of software patents?

I posit that the answer is none -- that the deal is completely one-sided and rotten to the core.

New inventions in software, far from being rare and precious things that need the encouragement of exclusive use, are in fact a very every-day thing; a software author who doesn't "invent" a "new" way of doing something every day is a poor software author indeed.

This isn't to say that some inventions aren't far more significant than others, but that's because they they solve common problems, and so will have many people searching for them

And when they're found, they will seem obvious to most of the people who find them, so they won't even consider getting a patent on them. But if somebody else does get a patent, they could be blocked from using their own invention unless they can come up with the proof (and money to litigate) to overturn the patent.

This is unfair, and goes against natural justice; software patents should be expressly prohibitted as an amendment to the act governing the issuance of patents. Please consider approaching your government to make this happen.