Licensing The Blues

In case you haven't spotted them yet, there are some excellent comments on my post from a few days ago, "Should Software Be Patentable?", from Tim Lee and Brough Turner.   Tim Lee's post on the Technology Liberation Front motivated me to ask the patent question on this blog in the first place.

Tim points out that he thinks

" it's a mistake to assume that the people getting the patents and the people doing the innovation are the same people."

...and that

"More often than not, software patents seem to be an alternative to innovation, not a reward for it."

My own experiences bear out the truth of these statements.  While I did receive some additional compensation from MCI through their patent program, it was hardly commensurate with the potential value of the resulting patents.

On the other hand, I drew a salary from both MCI and Level 3 while working on these patents, and I understood from my employment agreement that MCI and Level 3 would own anything I invented while employed by them.  So, I'm not bitter about their owning the patents...the rules were understood from the start of the game.  And my employers could certainly be justified in believing they played by the rules and "paid" for those patents in my salary and bonuses.  So, I think that Tim's "fairness" argument doesn't hold up well.

But that is hardly the centerpiece of Tim's argument.  Tim asserts that copyright should be adequate protection for software, and that patents for software are harmful because they inhibit innovation.  I find that argument far more fascinating. 

I found myself comparing software to music.  Music is not patentable, but it is subject to copyright.  So, at the risk of oversimplifying, Tim is proposing that we treat software in the same way that we treat music.

Imagine if music were patentable...what kind of changes would it have caused in the music industry?  I imagine that somebody along the way would have patented the twelve-bar blues, the classic blues form that frames so many great blues songs.  For the ensuing twenty years, nobody else could have written a twelve-bar blues song without "licensing the blues" from the patent holder. 

To me, the patentability of music would have created a grave inhibitor to creative expression, and would have deprived the world of many great musical works.  I would definitely not favor patenting music.

Then why should my attitude about patenting software be any different?  I don't know...I want to think through the analogy a bit more, to see if software really mimics music, to see if this little analogy holds. 

What do you think?  Should software be treated in the same way as music?