It is clearly necessary for a s/w company to file patents on whatever
unique ideas it comes up with, even at $20k/shot, rather than leave itself
open for the kind of aggressive cloning which allowed Microsoft to absorb
every OS utility, every text-editor and spreadsheet improvement.
Copyrights only protect sequences of bytes, source and object code, along
with documentation and images, but doesn't protect the story, so other
programmers can reimplement the story once it has been told. Copyright
just isn't enough protection for software, because unlike art, music, or
literature, the readers don't care about expression, they only care about
the
story.
If Bill decided to steal Will's story about star crossed lovers, people
still
care deeply about Shakespeare's expression that copyrights protect him.
Not so for Bricklin's Visicalc or NCSA's Mosaic. Lotus and Netscape told
the same stories. Excel and Explorer tell the same stories. It's not healthy
competition which is unleashed without patent protection, it is biggest
fish
eats best.
The "story" for software is the insight that the implementation of a
mechanism solves a valuable problem. It is, like the Wright brothers' idea
to
balance an unstable airplane through wing-warping, difficult to patent
because once the story is told, others can tell it in different and even
improved ways - like Ailerons.
Software stories like "data compression system which swaps the c and d
drive after booting," "carnage game with 3D linear texture mapping," "table
in which each cell can hold a calculated expression," and "multiple
processes communicating to the user through overlapping screen boxes,"
should have been afforded protection from larger predators. If enough
companies and universities who have had their valuable software stories
"retold" got together a lobbying effort, a new story protection system
could
be brought up within a decade.
My idea to replace patents is a 5-7 year "Story Exclusive," with a new
self-supporting public/private spinoff of the PTO called the "Software
Story
Board" (SSB). Heres how it could work: You apply to the SSB with a
working model implementation and the complete key-escrow-encrypted
source code, the story and its exclusive claims. These stories and claims
are published daily on a website which is publically examined, say, by
Slashdot readers, who voraciously search precedents and argue for 3
months. (Advertisement banners on the web site will pay for everything:)
This avoids the need for a corps of examiners and secrecy. After a couple
of cycles of claim refinement, the exclusive story can be rejected or
granted, and 5-7 years from the filing date, the source is unlocked for
others to study. Certain claims (like AI) will require examination of the
working model.
Given legal exclusivity on a software or business model "story," licensing
deals prior to expiration could be made which include equity or extend
royalties beyond the expiration date. Somehow I feel like Bricklin ought
to
get a royalty on Excel, and that Urbana ought to be paved in gold.