20 June 2005

Time Is of the Essence

There's a fascinating, if deeply misleading, article comparing patent and copyright protection in today's Guardian. The article appears to have been inspired by two things: The upcoming vote on software patents in the EU, and abject ignorance of how patents work by politicians. Neither is particularly surprising; virtually no politician has first-hand familiarity with intellectual property, as so few of them even write their own speeches anymore.

The first clue that the article has little relationship to reality is its author: Richard Stallman. (The second clue, ironically enough, is the copyright notice at the bottom of the article.) Stallman is and always has been an interesting thinker; he is not now, and has not been for a long time, immersed in a very close relationship to anything outside his increasingly rarified personal experience. And that, in turn, demonstrates the most-serious problem with Stallman's article. At one point, he says:

Other aspects of Les Misérables could also have fallen foul of patents. For instance, there could have been a patent on a fictionalised portrayal of the Battle of Waterloo, or a patent on using Parisian slang in fiction. Two more lawsuits. In fact, there is no limit to the number of different patents that might have been applicable for suing the author of a work like Les Misérables. All the patent holders would claim they deserved a reward for the literary progress that their patented ideas represented—but these obstacles would not promote progress in literature. They would only obstruct it. However, a very broad patent could have made all these issues irrelevant. Imagine patents with broad claims, like these:

Communication process structured with narration that continues through many pages.

A narration structure sometimes resembling a fugue or improvisation.

Intrigue articulated around the confrontation of specific characters, each in turn setting traps for the others.

Who would the patent holders have been? They could have been other novelists, perhaps Dumas or Balzac, who had written such novels—but not necessarily. It isn't necessary to write a programme to patent a software idea, so if our hypothetical literary patents follow the real patent system, these patent holders would not have had to write novels, or stories, or anything—except patent applications.1

(fake paragraphing removed for clarity) What's missing from this passage? Most obviously, any sense of time. Not once in the entire diatribe does Stallman note the differing terms of protection accorded patents and copyrights. Use of specific historical events as grounds for "a fictionalised portrayal" was anticipated and/or obvious to a practitioner skilled in the art of narrative storytelling by the time of Bocaccio. "Communication process structured with narration that continues through many pages," was anticipated not later than four hundred years ago—Don Quixote. Laurence Sterne (among others) anticipates the fugue-like structure some time in the 18th century… and that's just by restricting the language to English and prose; Spenser arguably anticipates this through a literary doctrine of equivalents, and one can even draw the same "teaching" from the eleventh-century Chanson de Roland, the twelfth-century Poema de mio Cid, and the thirteenth-century Amadis of Gaul. The last example—intrigue—goes back to, well, Aristophanes. And all of that assumes that the patent must have restricted to written, purportedly fictional materials.2 (And ignores the decision by a British jurist to reject the Freeny patent as invalid…)

No, Stallman's article reflects considerable ignorance of the historical bases of "fictional enterprise." (Perhaps, though, the world would be a better place had Hugo's overweening claptrap never seen the light of day… and inspired a really, really bombastic musical a century and a quarter later.) It reflects even more ignorance of the clash between the way writers actually work and prior art—in all senses of that term. The real problem is not with patent protection for software per se (because at least patent protection can be disclaimed!), but with the combination of the term of patent and examination procedure. Patent law uniformly applies for a uniform period (well, except for certain highly profitable drugs, but that's a rant for another time). Patents do not cover all types of intellectual material. Given the pace of change, perhaps restricting patents that do not have a specific physical embodiment of the best method disclosed in the patent to six years (or so) from date of conception might be an appropriate compromise; I'm throwing "six years" out there primarily because the number is so distinct from everything else in IP that it won't lead to confusion (e.g., the five-year incontestability period in US trademark law).

Stallman's essay gets, at best, a C– because its examples are so divorced from reality, its structure is so obviously calculated to deceive, and it relies on a straw-man depiction that isn't even accurate. The irony that time has such little acknowledgment in this essay, when Stallman has been one of the leading critics of longer copyright terms, seems to have escaped both Stallman and the Guardian. One must suspend one's disbelief by the neck until dead to credit this kind of article… and that technique in political rhetoric goes back at least two thousand years in Western tradition, so there's no question that its patent has expired.

  1. Well, leaving aside the requirement that patented concepts must be reduced to practice before they're eligible for patent protection. That's just another small problem with Stallman's argument: It asserts that the idea alone is the subject of patent protection, which is inaccurate both in a technical and a conceptual sense.
  2. Leaving aside the Old Testament—which, in fact, anticipates every single one of these "patents."