12 August 2009

Big Bounteous Blue, or Big Bad Blue?

One of the perennial teasers in the world of computing concerns IBM. On the one hand, you have a company that has embraced open source widely across its product line, and made major donations of code (to Eclipse, for example); on the other, it is a massive supporter of software patents, and also sells large amounts of proprietary software. So which is it: Big Bounteous Blue, or Big Bad Blue?

I think this submission [.pdf] to the court concerning the important Bilski case answers that question definitively:

In the months since the Federal Circuit issued its opinion, and to IBM’s great concern, a number of administrative and judicial decisions have rigidly applied the “machine or transformation” test to question—in some cases explicitly—the patentability of software per se. Software technology is vital in addressing society’s most pressing challenges. IBM is committed to ensuring that such technology is and remains patentable.

There we have it: "IBM is committed to ensuring that such technology is and remains patentable" - no two ways about it.

But wait - IBM goes even further, claiming that software patents are so desirable in part because they actually *powered* the rise of free software:

Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee’s terms—which has fueled the explosive growth of open source software development.

Well, actually, free software is produced *despite* software patents, in the teeth of their deleterious effects, as every one of your highly-paid engineers and lawyers understands full well.

So, no, IBM, that's a load of cobbler's, and it's disgraceful you should even try to pass off this apology of an argument that patents are somehow precursors of true "free sharing" in a submission to a court considering such an important matter, for self-proclaimed selfish reasons. This is clearly an attempt to head off the criticism that software patents harm free software, the most vibrant sector of computing today, and should therefore be scaled back by the US Supreme Court. Cynical ain't in it.

At least we know where we stand, now, with Big Bad Blue... (Via @zoobab.)

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guy said...

Ha, to me that sounds like lawyer-speak arguing that black really is white. We have to remember that IBM are recovering offenders in this respect (they taught MS every trick they know).

On the other hand perhaps patents and restrictive licences *have* driven the explosive growth of FOSS --- they've inspired smart people to work around the problem. If I recall wasn't linux started because Linus loathed DOS and wasn't allowed to improve minix?

Glyn Moody said...

@guy: yes, that's a good point about reacting to the problem; but I don't quite think it was what IBM had in mind...

Anonymous said...

To be fair, IBM has, as far as I know, patented things which were actually nonobvious and not anticipated, and has fought patents which were obvious or anticipate. So at least it seems to have been on the right side of the battles against patenting the obvious and patenting stuff invented by other people....

Glyn Moody said...

Given the vast number of its patents, I'm sure that's true. The point is that it's been snuggling up to the open source world a lot recently: alas, it's stance on patents means that's purely tactical (no surprise, really...).