Writings on technology and society from Wellington, New Zealand

Saturday, April 10, 2010


The Princeton online dictionary define disingenuous as: “not straightforward or candid; giving a false appearance of frankness”. I can’t think of a better way to characterize some of the responses to the Commerce Select Committee’s sensible decision not to allow software patents in New Zealand.

I’m delighted with the decision. I’ve written before about the iniquities of software patents. Here are five reasons not to allow them:

  1. Patents are private monopolies permitted because they are supposed to encourage innovation. Yet there is no shortage of innovation in software in countries that don’t allow software patents.
  2. There is serious harm in software patents because their existence threatens software innovators who can’t tell if some idea is patented and have no way to evaluate a threat from someone who claims a patent over their work.
  3. Allowing software patents lead to unintended bad consequences such as the existence of patent trolls – companies which appear to exist just to threaten developers with patent suits.
  4. Patents cause a large deadweight cost in legal fees. That’s money which simply disappears from the software economy to the enrichment of patent lawyers.
  5. Software patents can’t be awarded fairly. Patents offices and courts seem incapable of making sane decisions about what is and is not an original “invention” in software.

There has been a chorus of approval of the Committee’s decision. But there have also been some people arguing against. Two come to mind:

Patent lawyers AJ Park say:

[Open source promoters] believe that software patents are inconsistent with the open source model. However, this is only relevant if the model is proven to be best and that all software developers should use it. There is no such evidence. Developers who use the proprietary model should be free to do so unless there is proven economic harm.

Say what? Whether or not open source proponents believe that closed source is a valid business model – and there’s a range of opinion on that point – is irrelevant to whether the law should permit the existence of small software developers. The existence of software patents effectively works against small and lightly-funded software writers, some of whom use open source. AJ Park are either confused or disingenuous here.
Software has protection from copyright. That’s as it should be. It permits the author of a piece of software control over who uses it and what for. Open source and closed source software all rely on copyright for their licences. That’s what’s used to pay the developers if they wish to be paid. So, by denying the ability to patent software we do not prevent people from making a living producing software for sale. Rather, we inject some certainty into software development by freeing developers from worrying about whether someone else has invented – or just holds a patent over – some technique they are using in their code. We also allow small companies and even bedroom coders to create software without a large suit of patents they can cross-license with the big software companies. That’s how software patents suppress innovation, a point which AJ Park claims not to understand.
The comment that I want to highlight comes from NZICT. This is an industry body representing mostly large multinational software companies. Despite its claims, it certainly does not speak for the ICT industry in New Zealand. There are many, many large and small IT companies operating who are not affiliated to it. In its latest newsletter, which I can’t find online, NZICT says:

We regard patents as a fundamental property right for those software developers that choose to pursue this path.

A fundamental property right? I don’t think so. A patent is a limited right to exploit a monopoly over an idea for a period of time. There’s nothing fundamental about that – it’s a legal consensus created, supposedly, to encourage innovation. In as much as software patents are a right at all, they are a right open to definition by legally-constituted authority. That’s Parliament in New Zealand. But the real issue I have with this remark is the same as AJ Park’s above: allowing software patents greatly advantages a few large companies at the cost of everyone else in the industry and has a chilling effect on small developers.
I’ve already explained why I think software patents are a bad idea. They don’t deliver the benefits of encouraging innovation that patents are intended to do and many are actively harmful for various reasons. It’s no surprise that some people think software patents should be extended rather than reduced. It’s no surprise that they talk about “fundamental property rights”. But, then, turkeys don’t vote for Christmas, do they?

posted by colin at 5:13 pm  


  1. For further coverage of the responses to the Commerce Committee decision to add a exception for software in Patent Law take a look at the NZOSS response here:

    Or the video version of the same here:

    Comment by Peter Harrison — 11 April 2010 @ 10:30 am

  2. Bear in mind this isn’t quite a “decision” yet. Remember what happened to the last Select Committee “decision” you had anything to do with? Where Cabinet put back that infamous Section 92(a) you thought the Select Committee had well and truly buried?

    Just thought I’d remind you how politics works…

    Comment by Lawrence D'Oliveiro — 12 April 2010 @ 12:10 pm

  3. Lawrence

    I’m well aware of what happened last time :)

    That’s one reason I’m delighted that Commerce Minister Simon Power supports the Select Committee’s view that software patents should not be allowed in New Zealand. I’m sure that won’t be overruled.

    Comment by colin — 12 April 2010 @ 4:29 pm

  4. In further news, the New Zealand Computer Society has come out against software patents. That’s the voice of New Zealand ICT professionals, by no means all open source or free software based. Where does that leave NZICT?

    Comment by colin — 13 April 2010 @ 1:02 pm

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