Every Piece of Software that is Patented is Legally Required to be Within the Public Domain
How Sharing Files Containing Intellectual Property is the Suggested Policy of Patent Law
"As hacker groups continue to wreak chaos around the Internet like so many pirate ships terrorizing coastal waters, Sony is vowing their online digital fortress is as rock solid as can be," this reported from the latest Capitalist press, Saturday, June 18, 2011. The article was in response to how hackers pose a threat to corporations. Why would hackers do that? Because Sony illegally charged their bank accounts by hundreds of dollars when they had bought the game Call of Duty -- a released and updated version that, simply put, didn't work for six weeks after being sold. [*2]
"All I can tell you is we're more secure than we've ever been, and more focused than we've ever been at it," Sony CEO Jack Tretton said in response to the hack attacks. He made no comment that he had sold a bad game that didn't work, ignoring the thousands of complaints requesting a refund on their defective merchandise.
Another article, actually written and published by the cartel known as the Chamber of Commerce, said, "Pirates aren't what they used to be. No longer content with sailing the seven seas, they're now entering the open waters of the Internet, searching for new sources of stolen treasure." He even went on to say, "Sadly, many computer users downloading copyrighted content aren't even aware that they are trafficking in stolen property." [*3]
The Business Software Alliance (BSA) is a group of Capitalists united for the purposes of "eliminating piracy." Its own members market games that themselves are known to contain content pirated from musicians and artists, though courts have been uninterested in this type of piracy. [*4] Regardless, the BSA imagines itself to be an anti-pirate organization, while selling software that it has pirated. "The best way to change behaviour is through general awareness campaigns to prove to people that there is value in buying genuine software..." their spokesman said. The BSA has not responded to my inquiries, otherwise demonstrated, that their partners are making money off of pirated material. [*5]
There's only one major, significant problem with all of these statements. All software bytecode is in the public domain. What do I mean by that? I mean, explicitly, that these anti-piracy organizations are going after people who are distributing public domain material. That is, material owned by nobody, except the public, which anyone can do anything with that they like. The well-respected law publisher, Nolo, has released a book on the issue of public domain by Stephen Fishman. He clearly breaks it down...
An invention that is patented is public domain, but it empowers the patent-holder with one thing: to make and distribute physical copies of the device that use the patent design. With software, there are no physical copies -- it is all a set of instructions. The patent itself contains every detail necessary to make the program run on your computer. However, you can buy a computer without buying a "set of instructions" (software) already on it, and then just apply the set of instructions yourself (install the software). This is different from patents for factory equipment or chemical processes; for such patents to be of any use as public domain material, one must purchase very specific equipment, typically from the patent holders.
Yet, the law often looks the other way when people use the ideas of patents themselves, as long as such use is personal. For example, sandwiches are patented, but not many have been prosecuted for making one by themselves without acquiring the "inventor's" permission. [*7] Owners of patented software, however, believe the law should work differently in regard just to them. In case you're worried about breaking the patent law in regards to computer software, ask yourselves if you've ever stolen ideas from the following patent, filed and accepted in 1999....
"A crimped edge along an outer perimeter of the bread portions" -- I guess anyone can be a patented scientist today. Imagine if you had made a sandwich before 1999. You had illegally acquired designs that weren't even released to the public yet. If the patent holders of the sandwich were as aggressive as software patent holders, you'd be sued for ten times the price of the sandwich, because you had acquired a special, "preview" license of unreleased, intellectual property! [*8] Your behavior may even fall under the Economic Espionage Act of 1996 for violation of trade secret law. [*9]
Thankfully, though, a sandwich is a physical object, and software is not. A piece of software is simply an idea, so a description of software is the idea. Giving that description, properly formatted, to a computer, is the same thing as installing the software. A description of the sandwich, however, is not a sandwich, though. Only the sandwich makers can produce that sandwich and distribute it. Only the patent holders can produce their working idea, which means installing it on a computer. Anyone can distribute the idea of the software, which is the program's executable code itself, just like anyone can distribute the patent to a sandwich -- they're both in the public domain.
Normally, logic is never applied to law. It relies on precedent, orders, commands, like religion, and never logic. But, I dare venture forth and offer this paradigm: (1), If software is patented, then the software itself is in the public domain, because all patents are in the public domain. And (2), If software has not been patented, or if the patent for it does not sufficiently describe it's workings, then it's not protected, intellectual property. If it's patented, then it's public domain, and if it's not patented, then it's public domain. Many well-respected lawyers today, as well as the government patent offices they work for, have even argued Software Patents Cannot and Do Not Exist! [*10]
The People's Response to a System Based on Exclusion
Police officers break down the bedroom door of a Swedish, sixteen-year old teenager who has been glued to their computer for the past 28 hours. Being led by the FBI, the CIA, and the international police organization Interpol, dorm rooms are raided at the Massachusetts Institute of Technology, the Rochester Institute of Technology, University of Los Angeles California, the University of Oregon, Duke University, and Purdue University. [*11] [*12] [*13] Simultaneous raids took place in Canada, Britain, Australia, Finland, Norway, and Sweden. [*14] The BSA estimated that the individuals involved had stolen over $12 billion in their pirate activities. [*15]
More than one hundred computers were seized, more than sixty search warrants executed, and sixteen individuals convicted. There was only one minor problem: the BSA lied to the CIA and the FBI about the amount of money they expected these individuals to be making. More than that -- all of the software found on these people was wholly and completely within the public domain. Next time you want to "steal" something, just download the patent's bytecode from the United States Patent Office. And if it's not there, then it's obviously not protected, intellectual property.
What makes a software patent different from any other patent is that all you need is the instructions to be able to use the idea personally. You simply "install" it onto your computer. If you had your own machinery factory, then you could reproduce anything that's patented. Of course, it's illegal to do it without the permission of the patent holder's knowledge: that is, production or consumption, without permission. However, it is completely legal to distribute the patent itself, which is absolutely in the public domain. When someone downloads a pirated program off of the internet, no crime has been committed -- because the US Patent Office gives the same exact downloads. It's only illegal to use.
Filesharing? Legal. Using patented files? Illegal. That means networks for the download and upload of software, even so-called "pirated" and without the software corporation's permission, cannot ever possibly qualify under piracy. If it were illegal to distribute patents -- then we're talking about something completely different. Then we're talking about abolishing all concepts of property and ownership ever held by human civilization. Abolish all known property rights throughout the history of humankind, as long as Capitalists can stay in charge: this the tactic of government today in regards to property in "ideas."
You may not be rich enough to get away with it. The idea of downloading software to steal it, because it's public domain, has been done by Mozilla Firefox, Apple's OS X, the Apple Browser Safari, Google Chrome, as well as Macromedia software products. Each of them stole the software designs from Adobe's 1996 patent for tabbed browsing. [*16] [*17] [*18] [*19] (Patent Number 5,546,528) Even Microsoft is a violator, filing the exact same patent, except renaming "Tabbed Browsing" to "Tabbing" in 2004. [*20] (Patent Number 6,785,865)
If I believed in the law, I'd say, "The Fourteenth Amendment of the US Constitution guarantees equality before the law, so download all of the software you want, just like these other mega-pirates." But I'm not an idiot -- the law was created for the rich, against the poor. You won't be allowed to pirate software, unless you've got children held at gunpoint in some sweatshop manufacturing the product of your piracy. Unless you're a multimillion dollar corporation making money off of it, you're likely to be arrested for downloading material that is completely within the public domain.
*1. "The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More," by Stephen Fishman, Published by Nolo, 2008, ISBN-13: 978-1-4133-0858-7, ISBN-10: 1-4133-0858-9, Page 76, Chapter 3: "Writings."
"It is entitled to protection under state antipiracy laws. In the first case on the issue, New York's highest court found that recordings created in Great Britain in the 1930s were entitled to protection under New York’s antipiracy law even though they were in the public domain in Great Britain because their British copyrights had expired in the 1980s. (Capitol Records, Inc. v. Naxos of America, Inc., 4 NY3d 540 (2005).)" ("The Public Domain: How to Find & Use Copyright-Free Writings, Music, Art & More," by Stephen Fishman, Published by Nolo, 2008, ISBN-13: 978-1-4133-0858-7, ISBN-10: 1-4133-0858-9, Page 119, Chapter 4: "Music.")
*5. E-mail Sent: Sat, Jun 18, 2011 at 7:02 AM.
*11. "Operation Buccaneer," by Computer Crime & Intellectual Property Section, U.S. Department of Justice, United States Attorney, Eastern District of Virginia, United States Customs Service, United States Customs CyberSmuggling Center - C3, Offenses: 18 U.S.C. § 371 - Conspiracy, 18 U.S.C. § 2 - Aiding and Abetting, 18 U.S.C. § 2319 - Criminal Copyright Infringement, CyberCrime.gov .
*17. "Apple's interface held to the fire in dubious suit," By Katie Marsal, Saturday, April 21, 2007, published by Apple Insider, AppleInsider.com .