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Linux Journal: Internet Patents: Giving Away the Store

Dec 24, 1999, 06:28 (1 Talkback[s])
(Other stories by Bryan Pfaffenberger)

"Absurdly broad patents on Internet business methods are a bad idea, and not just because they distort competition in e-commerce. They also reveal what's wrong with all software patents--and why they must be abolished...."

"Let's start with a bit of background. As you're probably aware, the U.S. Constitution authorizes Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." But what does this mean?"

"Judges and attorneys who favor software patents will argue that a literal reading of the Constitution discloses only that such rights should be limited in duration, but this is obviously false. The Constitution clearly states that that copyrights and patents should promote the progress of science and technology. It is also obvious that the Constitution means to distinguish intellectual property rights from the type of rights granted to owners of tangible property, such as real estate. In the "takings" clause, the Constitution plainly states that the government may not deprive citizens of their tangible property without paying fair compensation. However, no such compensation is owed when copyright and patent holders lose their protection. Therefore, the Constitution argues that Congress promotes science and technology not only by granting temporary monopolies to copyright and patent holders, but also by depriving them of these rights after a certain amount of time has expired. What the Constitution envisions, in short, is a thriving and growing public domain of ideas, knowledge, and techniques. In the public domain, no one person has a right to exclude others from using ideas, information, techniques, or knowledge in a particular way (Benkler 1999)."

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