Another Parable of the Cave: progress in knowledge untethered to scarcities is promoted through increased access

[First draft of an argument against the patenting of software]

Working from within a cave is inefficient. It would lead to lower quality works. We might waste much time re-inventing an inferior version of the wheel. We'd progress slowly.

Always given the opportunity to return to a cave to live there for a great while and try to develop something new or interesting from within its confines and limits, anyone of us would almost surely take a pass in order to stay out here in the sun and leverage our modern social context. We recognize that access to superior ideas and interactions is very valuable. We reached the moon in the 20th century, not in the 2nd. We mastered basic geometry in the 3rd BC and were able to leverage and build upon it to greater heights in following centuries.

At most, we might dip into a cave for a little while for the purposes of mental training and discipline or to help regain our bearing within a world that offers perhaps too much.

The lesson of this cave is that greater access to advancements promotes our own growth and progress, no matter who we are, great or small contributors. If we go into caves to exercise our minds and test our skills, it is always with the understanding we can quickly peek outside at any moment, and we will almost surely create our best works outside the caves.

So now let's jump a bit and ask a question. Does it make sense to establish a monopoly in any area of human intellectual pursuit? Should it ever be decreed for anyone that drank from the infinite spring of society to be able to stop others from drinking?

Let's consider this scenario. The human world has suddenly become blessed by a group of angels that are able to create for us based on whatever blueprints we conceive. If we design a huge new building, our angels will summon forces to create this building during the blink of an eye. 10,000 bulldozers, cranes, trucks, and other heavy machines manned by 100,000 workers costing hundreds of millions in materials and labor? No problem. Our blueprints come to life instantaneously.

Had this been the state of the United States at around 1793, it is very unlikely the framers of the Constitution would have even considered granting patent monopolies for many years to a single individual. They would not have allowed someone living and breathing society to prevent others from creating their own dream palaces and machines using their private angel force.

Let's consider copyright in how it enables a monopoly over a fixed expression rather than over works which would be described by exclusivity claims. We don't allow an author to lay claim over ideas, concepts, etc, that could be so described. We don't allow one author to stop all other authors for many years from building their own dream wonders within the pages of their own book. We never have given monopolies to anyone on broad concepts that would derail the building of individual fantasy lands. To do so would deny free speech and could all but be guaranteed to stifle progress in the art to a very significant extent. We would be giving one drinker the ability to keep all others from drinking from that same unlimited fountain.

It is our contention that the reason patents allow the mere description of some functionality to be monopolized so as to preclude others from leveraging any implementation of that functionality within their own works is that patents were specifically a protection tied to creation and distribution of scarce items requiring significant amount of energy, time, money, and consequently risk. If we remove the scarcity problem, the costs in energy, time, and money, as was the case when we had access to our mythical force of angels, then invention is nothing but a variation of the creation process (study and learn, practice, analysis, creativity, etc) practiced by authors, businessmen, mathematicians, musicians, lawyers, judges, and many others in disciplines that have always been spared the patent monopolies. It entails little risk, especially since the creation and the journey often come with significant beneficial side-effects. If "invention" was achievable trivially without undue burden, costs, or risks, once the blueprint was laid out, as is the case when putting words or notes to paper, then inventions would be controlled not by over-reaching patent law but by copyright law at most.

Let's talk about software. It is the result of engineering. It is a work of authorship. It is an algorithm, recipe, instruction manual, and configuration for a computing system.

Digitalization has transformed our world. We now can simulate many machines simply by using a general purpose programmable "brain" (a blank slate we fill to our choosing) and flexible peripheral tools that serve as the "body" by accepting the digital information from the brain and converting it "dumbly" into sound, light, and other analog effects for us to experience.

That programmable digital brain with related analog converters has become our long-sought force of angels. And anyone with a computer has such a private majestic army at their command, needing only the instructions, the precise recipe, to enable the magic. The blueprints we provide is the software we author and share (or sell). This authoring is a purely intellectual process of extremely low risk and costs. It is purely the creation of knowledge (not of a physical machine), so it can be disseminated instantly to any and all for feedback, enjoyment, and utility. This creation process has benefited tremendously from the collaboration, teaching, and information distribution capabilities of the Internet. It is no surprise that the Internet itself exists because of this open collaborative effort and which continues to enhance the blueprints of the Internet itself. All of this being possible because we are exchanging information, recipes, works developed through the written word. We are not exchanging or manufacturing machines. We are enabling society in new efficient ways through a sharing of new information, through a socially collaborative effort, through a never ending stream and improvement of works promoting the art in many fields of human practice.

Machine creating and simulation through software instructions has enabled countless of individuals to partake in advancing the art in many areas, wherever a "brain" is needed. It has allowed top and amateur mathematicians, physicists, biologists, engineers of all sorts, and many others coming from a surprising diverse range of environments to use their specialties to help build the instructions for the brains that powers this revolutionary calculating and information processing machine. The computer is the ultimate tool that has enhanced all sorts of disciplines simply because those with the specialty in all of these areas have been able to convert their needs into algorithmic steps (sometimes with the help of a professional computer programmer) so as to have them carried out much faster than they ever could carry out those same steps as human beings.

It is inconceivable to many that a patent would be used on software. A patent can describe a particular machine, but today those potentially particular machines are oftentimes not being built and distributed. The patented effects are more frequently achieved through the magic of simulation by an existing computing system to which almost anyone has access and when given the right bit of information which is created usually with the help of an expert or skilled individual in the related field of knowledge. These bits of information created and disseminated by many cheaply are the essence being challenged by these broad patents. It is an attack on the creation and spread of human knowledge. No machines were manufactured in the creation of the software. No expensive industrialized effect was achieved.

Software is an instruction manual (algorithmic steps) given to a sort of robot (the computer) which then possibly uses its attached display and other peripheral components to express to another human the effect described in that manual. How could a manual or how could an existing computer after digesting such a manual become newly patentable? Such a monopoly covering potentially so many ways to express a program for that computer so that thousands if not millions could not partake in further expanding and improving that program without avoiding infringement is a terrific way to stifle progress and abridge free expression. We are not talking about a few very wealthy "imitators" being denied access into a high capitalization venture, we are denying millions of individuals, many experts who consider the contents of the patents to be obvious, from participating in creating useful and novel programs that perhaps cannot avoid the patented features.

To help understand that we are just coming up with a recipe, with a set of steps, in each and every single instance where a computer simulates some other machine or other, consider the following very possible way to create a computer. This hypothetical computer is nothing but an incredibly large wood and concrete house with a great many doors. The house, if built, could function as a complete PC though we would need about as many doors within this house as might currently exist in all the existing houses in the US. Naturally, this house will not be built because of the very high costs for materials, energy, and labor, and the consequent slow rate of processing due to the bulkiness of all its parts. We note that whether we leverage one human, 1000 humans, such a colossal house, or an ordinary PC using super small and fast parts, all we are doing is processing information and then observing the results using standard tools (like a general purpose display screen).

"A full working computer can be made from a house with a great many doors and door sensors, a central clock, lots of wires, and some helper mini control stations. We can even add a simple display monitor with an adapter to view results on a nice color screen. This house is the computer, made and patented once. From that point forward, every single case of this house "becoming" a new machine is absolutely nothing but reconfiguring the initial set of doors in the open or in the closed position. Does it make sense that by changing which doors are open and which are closed (and doing nothing else), that we are creating a new machine? Maybe it takes creativity, luck, analysis, etc, to find a good set of doors to open and close [for that starting configuration], but we are most certainly not creating a new machine. We are reconfiguring the state of the machine [(ie, of the house)]...." [ http://en.swpat.org/wiki?title=Software_does_not_make_a_computer_a_new_machine ]

Once we power on that house, all the processing happens automatically. A human could have been doing the work (perhaps using paper to keep track of the very large number of details) instead of the house. Every so often, the open-or-closed state of a specific given set of doors is what prompts the display screen to show another particular image (ie, the next frame image of a game you might be playing on that house/computer). For example, 24 consecutive open doors would imply white light be shown in a little part of the screen. In yet another part of the display screen, blue light might be generated because the corresponding 24 doors were 8 consecutive open doors followed by 16 doors closed. All of this was generated merely from the initial starting open/close configuration of doors (ie, from the loaded "software program"), while additionally factoring in every so often a set of (open/close) values taken from the position of our "mouse" peripheral device used to move the action figure within the game.

Naturally, just like writers need paper and pen (or now a computer) and musicians need a stage and sophisticated music and sound equipment, so too does software require a physical medium in order to achieve its greatest effect. Today, too, the software engineer with the help of domain experts is a creator of virtual worlds. He or she supplies the intellectual content, and this information instantly can become available to any and all around the world to use to drive their personal computing devices into uncharted (virtual) lands.

The only argument software patent supporters have for their cause, that software is patentable, is the over-simplified correlation that each software program loaded on a computer is an "invention" and patents are awarded for "inventions". Otherwise, software is nothing at all like how those that wrote support for patents into our original set of laws anticipated would become the target of a patented invention. These minds were the very same that created the safety clause in the Constitution "to promote the progress" and then added the First Amendment protections, not wanting the growth of useful new knowledge to be stifled nor expression to be abridged. They did not intend for original inventions of the mind to be curtailed.

[Note, this loose argument does not focus on FOSS (though FOSS does maximize some of the benefits described above), on the low inventiveness bar for patents and its repercussions, nor on patents' long period of duration. If convincing, this means the practice of software writing and usage would be eliminated from patent coverage no matter the details of the software or of a possible change in patent law. The appeal (mostly indirectly) would be to principles from and conflicts with the US Constitution.]