Patent Absurdity: The Case against Software Patents Comes to Film

Off the Beat: Bruce Byfield's Blog

Apr 18, 2010 GMT
Bruce Byfield

Why are free software advocates challenging American patent law? How did American patent law come to apply to software? Why is the Bilski case potentially so important? If you want to be brought up to speed on such issues, then consider taking half an hour to watch Patent Absurdity: How Software Patents Broke the System. Directed by Luca Lucarini and produced by Jamie King with support from the Free Software Foundation (FSF), this short film is both informative and surprisingly engaging. Available in Ogg Theora format, it is released under a Creative Commons Attribution-No Derivative Works 3.0 license.

Legal complexities rarely made for dramatic footage, but Patent Absurdity sidesteps this difficulty in several ways. It begins by showing people lined up in front of the American Supreme Court in November 2009 to hear the Bilski case. It then moves to two of the principles in the case, Bernie Bilski and Rand Warsaw, who in their own words explain their patent as a process of hedging commodity risks that sounds very much like standard business practices. The scene then switches to Dan Ravicher of the Public Patent Foundation, who explains that, since software is also classified as a process for patent purposes, the case's outcome will affect software patents.

After a brief interview with one of the Bilski lawyers, Ben Klemens, author of Math You Can't Use, explains that software is essentially a series of mathematical algorithms. Klemens explains that, by transforming the abstract symbols in the algorithms into more concrete concepts (such as affection for cats and sexuality, in the case of online dating), software has suddenly become patentable. The rest of Patent Absurdity explains how this state of affairs came to exist, and how it stifles inventions while proving enormously expensive as well.

Along the way, the film presents almost a Who's Who of free software and patent experts, including Richard Stallman, Ciaran O'Riordan, and Peter Brown of the FSF, Eben Moglen and several other members of the Software Freedom Law Center, as well as such programming and legal luminaries as Dan Bricklin, Mark Webbink, and Jim Bessin. If you know these cast members only as people quoted in news article or (in my case, in a few instances) as voices on the phone, one of the bonuses of the film is seeing what they look like and how they move.

Keeping watchers engaged

In most hands, this material would be as exciting as waiting for a puddle to dry out, all the more so because of the basic talking heads format. However, Patent Absurdity manages to keep the discussion interesting by frequently changing speakers, and presenting them in a variety of indoor and outdoor backgrounds, and never lingering on a single speaker for more than a couple of minutes at a time. It helps, too, that, instead of a narrator, the film uses story boards, which have the (probably unintended effect of providing brief breaks from the constant talking heads.

Nor are many of the speakers simply holding forth at random. In retrospect, I would say that many have been coached beforehand on what they are going to say, and may even have worked from a script. Or perhaps they are simply expressing opinions they have given many times before, or the editing is extremely tight.

But, just as important as any artifice in unifying the film is the fact that many of the speakers are clearly passionate about the subject -- particularly Ben Klemens, whose chalkboard explanations of how algorithms were repositioned can barely keep up with the rush of his explanation. Others hold the audience by articulate bluntness; Eben Moglen, for instance, helps explain why patent law has been hijacked by specialist lawyers by pointing out that judges, who tend to be selected from general purpose lawyers, hate patent cases because the detailed research they require represents "an opportunity to be made into a fool."

Still others add much-needed detail. For instance, James Bessen, a defense lawyer in the current Bilski appeal, offers the statistics that, in 1998, one-quarter of all patents in the United States today are for software, and that software is responsible for one-third of all litigation -- and the statistics have risen considerably since then.

Since the Bilski appeal has not been decided, Patent Absurdity also risks trailing off indecisively at the end. Instead, the team behind the film returns to a statement made by Richard Stallman earlier in the film. Stallman invites watchers to imagine an 18th Century world in which patents were taken out on musical ideas, such as a sequence of chords or group of instruments to play together. He then invites the audience to imagine that they are Beethoven, suggesting that they would have found writing a symphony for which they wouldn't be sued much easier than writing a memorable one.

"And if you complained about this, saying that this is getting in the way of your creativity," Stallman says, "The patent holders would say, 'Oh, Beethoven, you're just jealous of us because we has these ideas before you. Why should you steal our ideas.""

As Stallman makes the analogy, it is amusing but almost forgotten in passing. But, at the end of the film, its makers return to the analogy, by playing Beethoven's Fifth Symphony while an animated score is gradually stripped of imaginary patents until only bells are left. Suddenly, what was originally only a witty conceit is transformed in a concrete example of how patents stifle innovations, literally silencing a great artist.

A Successful Debut

Patent Absurdity has its faults. Its storyboards that summarize landmark court decisions should be shown for almost twice as long as they are, so that watchers can not only read but also absorb them. The same is true for many of the callouts identifying speakers.

The film would also be strengthened if it made more attempt to present opposing views. For one thing, many have not heard them. For another, answering opposing views would only strengthen the film's own view. Without this perspective, the film comes across as pure propaganda -- not in the pejorative sense, but in the technical sense of being interested in only one side of the discussion. This is a valid decision, of course, but it makes dismissing the film too easy for its opponent.

However, judged as a piece of advocacy journalism, the film is a solid success. If you enjoy Sixty Minutes or the Canadian W5, you should find Patent Absurdity equally worth your while.

Personally, I hope that the makers release more films about issues that concern the free software community. If they do, then I, for one, will definitely be watching.


  • Patents

    <a href="">Why</a> is it that liberals want to relax patent law therefore taking rights away from the inventors/idea generators? My ideas are not the property of the masses. I should be able to benefit from the patent until it runs out. Otherwise, why would anyone want to invent something new?
  • Well, I think

    Well, I think it is a very important question and one that needs to be discussed and analyzed at higher levels. After all, I don’t think there is actually no absolute reason for advocates of free software’s to challenge the American Patent law since I don’t remember a time when American Patent had to do anything with software’s. Anyway, the video really does bring up a question. What is it that the government going to do regarding the Patent absurdity.
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