German software patents are a sad day for software

Those members who know me well will be aware that one of the main reasons that I originally got involved with the Pirate Party was because of its support for patent reform, and in particular its opposition of software patents. Today is a sad day for software in Europe; the German High Court has now effectively declared software patentable without any meaningful limits. It's especially bad news for Free and Open Source Software (FOSS).

But what's the big deal with software patents? Why are they a problem?

The first issue is that, in countries where software patents are permitted, computer software is the only sort of work that's doubly protected — protected by both copyright and patents. Most things are protected by only one; you can't patent a movie, and neither can you copyright a gearbox. Although patent protection lasts a much shorter time than copyright does, it's much stronger; it doesn't just stop you from copying something, but stops you from making anything like it. By permitting software to be granted both sorts of monopoly, software authors enjoy a privilege that other inventors and artists do not.

The second, and much more important issue, will be familiar to many people with an awareness of computer science. All software that runs on modern computers, however complex, can be reduced to a set of instructions to be executed on a special type of ideal computer called a Turing Machine. What makes this fact interesting is that any program for a Turing Machine turns out to be isomorphic (that means, "identical under a structure-preserving mapping") to a particular related set of mathematical expressions. Software, it turns out, is mathematics — in a rigorously provable manner.

Now, all patent systems throughout the world specifically exclude mathematical expressions and methods from patentability. This is because if you have a way of expressing a particular mathematical concept, it turns out that any other way of expressing the same mathematical concept can be rewritten in your original way. If it was possible to patent mathematics, it would be literally impossible to find a "way around" the patent. Being able to patent mathematics would block off whole fields of mathematical endeavour.

Software patents can make whole classes of programs the preserve of those able to license the patents.

As a Free Software developer, I'm particularly worried, because Free Software can only work when anyone can use the software and distribute it to others. Due to software patents in the USA, there is a whole bunch of functionality that was — or still is — impossible for Linux distributions to offer "out of the box." These include such basic features as watching DVDs and Internet video, creating and listening to MP3s, and working with JPEG2000 images. In all these examples the patents cover mathematical algorithms for encoding and decoding data. What makes things worse is that FOSS developers are blamed for the lack of these, even though they've written the code and it works perfectly well.

So, given that software is mathematics, and mathematics is unpatentable, how has the German High Court managed to come to the conclusion that software is patentable? Hard to believe, but it's as simple as this: patent lawyers added to the claims of the patent the fact that the software runs on a computer (with CPU, RAM, etc). Suddenly, that makes the software a machine, and thus patentable.

I like to compare software to recipes (which are also generally excluded from patentability). What the German courts have allowed is like making a cake recipe patentable by adding a wooden spoon, mixing bowl, and oven to the claims.

The patentability of software in the UK is a another battle that the Pirate Party UK is going to have to sail into in the near future, and it's going to be a long and bitter one. We had a hard enough time in March and April this year explaining to people why the Digital Economy Act was such a bad idea, and explaining the problems with software patentability will be even harder.

For more information on software patents and their negative effect on software developers and the wider economy, I recommend watching the film Patent Absurdity (released under a CC-BY-ND license, and available via BitTorrent). Set sail to the Pirate Bay and download it, yarr!