The Fair Use of Ideas

• August 8, 2011
• 8 notes

I’ve tried my best, but just can’t reconcile the complete abolishment of software patents with my innate sense of justice. The patent system is an utter mess, but let’s not be so quick to throw out the baby with the bathwater.

Among the friends I’ve made in the indie iOS development community, there is a sort of unwritten honor code related to software innovation. If someone comes up with a great implementation idea we either ask for permission to use that specific implementation, or we iterate on that idea such that it has recognizable bits of the original implementation, but is clearly different—preferably improved. We borrow from each other constantly, but we do so respectfully.

That works well for a relatively small community of thoughtful, creative folks, but obviously doesn’t scale. As the App Store has grown, so to has all forms of blatant IP theft and attempts to profit on the ideas of others with little or no innovation. In the App Store this happens on a relatively small scale and the knockoffs don’t often gain traction.

Then there’s Google. Their knockoffs aren’t confined to the App Store, and with a huge pile of cash funding the efforts many have gained significant traction. As I said in a previous post, they have been “borrowing” at an alarming rate and seem to care less and less about their own innovation as they seek to capitalize on their ability to monetize software through advertising.

I don’t think Google set out to become the Chinese knockoff shop of the software industry, but the erosion of intellectual property rights is a slippery slope. It seems to have started with a disdain for the blatant abuses of software patents and dissolved into a sense of entitlement. Whether or not specific patents are valid, Google doesn’t have the right to trample on any and all software related intellectual property rights. “Making enemies along the way” might seem like an appropriate way to create shareholder value, but it often comes back to bite you in the ass. And even when it’s not illegal, it’s disrespectful—both to the innovator(s) whose ideas were stolen and to the entire industry.

How then do we effectively protect the intellectual property rights of software developers while also spurring innovation. Fair use. Copyright law is another mess of good intentions and imperfect execution, but the concept of fair use has made copyright law, well, more fair.

Here’s an overview of the fair use provision in copyright law from the U.S. Copyright Office:

Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered fair, such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

• The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes
• The nature of the copyrighted work
• The amount and substantiality of the portion used in relation to the copyrighted work as a whole
• The effect of the use upon the potential market for, or value of, the copyrighted work

Those four factors have obvious application in the realm of software patents.

Even in copyright law, fair use is confusing and far from perfect—and there’s still the threat of a lawsuit that one can’t afford to fight—but taking some of the teeth out of software patents with concepts similar to fair use could move us a long way toward a more balanced, productive approach protecting the intellectual property rights of software developers. Other ideas such as a non-practicing entity clause would also help.

Unfortunately, adjusting patent law and interpreting it through the legal process will take years. And the legislation currently pending makes things worse, more than better. In the mean time I propose a stopgap. Software developers should treat each other, and the entire industry, with respect. And when we fail to do so, we should expect public shaming by our peers and industry journalists. 

Stealing ideas for profit is shameful. Borrowing from the ideas of others and innovating on them is commendable. These two seemingly contradictory concepts are at opposite ends of a vast sea of grey, but some shades of grey are dark enough to be called black.