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Content on this website is provided by W. Upjohn Institute. However, a certain form of writing—the writing that comprises computer software, or source code—is protected by patent law.
Ontological arguments that equate code with writing, math, or engineering can be seen in the legal and software-development communities as they passionately debate what legal protection software should have. That software patents affect the digital environments in which we and our students compose makes these patents a critical area of study for composition teachers. That these patents force us to consider how the domains of writing, math, and code are increasingly intersecting makes them a fascinating touchstone for considering the role of computers in composition.
E-mail address: annettevee gmail. Code is both a means of enacting processes and a description of those processes. When applied to software, patent law foregrounds the functional aspects of code rather than the textual aspects. These textual aspects of code, including the style and creativity involved in expressing processes, can be more effectively approached from the analytical tools of writing studies and the intellectual property regime of copyright.
A discussion of patent law pertaining to software—as well as the creative nature of code composition—then serves as an opportunity for writing scholars to become more involved in the current policy debates about software patents, especially as we see our composition environments and processes handicapped by overly broad patent restrictions.
To draw greater attention to patent law in writing studies, I first review specific situations where software patents have affected digital writing environments common to composition classes. Next, I briefly outline U. Finally, I visit three code writers—one each from corporate, open source, and freelance contexts—who have all had their writing processes impacted by patent law.
An examination of controversies surrounding the intellectual property protection of software reveals rich intersections between writing and code. Code, composition studies, and intellectual property As an instrument that allows composers to embed audio, video, graphics, and photographs into writing, the computer has revolutionized what we think of as linear composition Bolter, Writing scholars now routinely consider images, audio, blogs, and games as part of our studied domain, demonstrating the protean powers of the modern computer to translate writing into anything, and anything into writing.
The way the computer allows us to more easily remix pre-existing material—combined with a legal landscape that increasingly favors copyright owners over those poised to create new content out of the old—has forced us to more carefully consider the political, ethical, and practical dimensions of copyright on our professional lives.
From the work of Gurak to that of the digirhet collective to that of Steven Westbrook and others, composition scholars have helped us negotiate the uncertain impact of the law in our classrooms and professional lives. As many writing scholars have noted, we have seen an erosion of the public domain in copyright law. Yet little attention has been paid to the impact patent law can have on the software in which we now compose.
Over the last 15 to 20 years, a repeated claim in writing studies scholarship has been that control over our digital writing envi- ronments means control over the code that governs them.
As Cynthia L. Selfe and Richard J. Selfe claimed, the assumptions embedded in coding practices carry through to our interfaces. For this reason, Paul Leblanc argued that composition teachers should be creating their own writing software. Writing and web-editing software may be robust enough now to deter us from designing our own from scratch; however, programs we can customize such as OpenOffice Writer can make us code-authors; writing applications through the Firefox extension Greasemonkey, for instance, can help us manipulate our online writing environments Ballentine, However, the existence of software patents means that even access to the code provided by open-source software fails to guarantee our right to customize our writing environments.
Patent law can stifle competition that would be beneficial for our composition ecosystem, or these laws can simply limit features in the software available to us. These limitations may affect our software choices or the choices of students as we may tend to favor proprietary software from companies that wield the most patents and can therefore offer simpler or more elegant, feature-rich environments in which we can compose. Each time this happens, the most popular—and often, proprietary—software for digital composition increases its mindshare, and we lose a modicum of control over the writing environments in which we and our students compose.
Like the shrinking of the public domain we have witnessed due to stronger copyright laws, we can see a carving up of the commons in patent law: programming techniques and features in programs, once patented, are unavailable for common use for 20 years.
Although the authority for Congress to enact both patent and copyright law stems from the same clause in the U. Patent Office. However, compared to copyright law, patent law grants much more powerful control over inventions: in exchange for an application fee and a detailed description of the invention, the U.
Patents have tended to cover inventions closely associated with engineering and manufacturing: tractor designs, product packaging, and chemical compounds, for instance. Over the last few decades, patents on software have become increasingly common as corporations such as Microsoft struggle to compete in the fast-moving and lucrative software market. In this way, patents can circumscribe the features available in software, including the software in which we compose both multimodal and more traditional texts.
Simon Garfinkel, Richard Stallman, and Mitchell Kapor opened their argument against software patents with an example of a patent dispute affecting a word-processing program. A popular program at the time, XyWriter, was forced to eliminate certain auto-complete features because of a threat from another company who had, in the meantime, patented them.
Microsoft has frequently attempted to protect its popular Office suite with patents. In , Microsoft claimed that its open-source rival OpenOffice was violating 45 of its patents.
As the multimodal work that we and our students compose becomes increasingly sophisticated, our exposure to patented software increases as well. For example, the standard image format GIF relied on a patented compression algorithm until , when the patent expired.
After the standard had been well supported, the patent holder, Unisys, pursued software that interpreted GIFs. Most just paid Unisys a fee for use, but providers of free software and shareware could not Klemens, Patents affect audio composition as well: MP3, the popular compressed audio format in which many of us record podcasts or audio feedback for student papers, is restricted by patents.
Although MP3 was initially adopted by the International Standards Organization, it later emerged that the format infringed patents by a German company, Fraunhofer, who was—perhaps not coincidentally—involved in establishing the MP3 standard.
As a result, royalties must now be paid to Fraunhofer for almost any program that reads and writes MP3 files Klemens. This patent restriction is why we must install a separate MP3 encoder to support MP3 files in the open-source audio- editing program Audacity.
Software patents, like our writing, are not restricted to the desktop. For instance, the popular online microblog site Twitter was sued in August for patent violations. Software patents can affect the features and software programs in which we compose, but they can also affect compositions themselves when those compositions are in code.
In addition to incorporating audio and images, digital work—such as web sites, games, or electronic literature—can include code as a central part of its composition. For this reason, scholars such as David Rieder have argued that code is a form of writing and can be governed by aesthetics, just as much as writing can be. Like Rieder, many programmers have claimed that code and poetry have similar formal constraints and allow for similar kinds of creative expression.
Where would we draw the line between functionality and expression? Each little code puzzle conveyed a reference to a song and so relied on both pop culture and code knowledge to crack it. Some songsincode similar to those that robbed me of productivity that day include: 1. Although the programming functions described in these code puzzles are probably too basic to have been patented, the event suggests that code can be more than functional; songsincode are human-readable and playful.
The rhetorical parallels between composition in writing and in code were noted by Ron Fortune and Jim Kalmbach in their introduction to a special issue of Computers and Composition on code.
Bypassing the creative angle on code, they demonstrated that programming can be elegant, and therefore rhetorical. Code can solve a problem in an efficient and concise way, and that effect can be independent of the program and the interface with which a user might interact.
Robert Cummings carried the connection between writing and programming further: Though their linkage is relatively unexamined and under-appreciated, both pursuits are inextricably joined by the fact that they center around the act of writers writing. Both types of writers—writers of code and writers of text—write for vastly different audiences and with what would seem to be vastly different products, but [. A patent protecting a brute force and inelegant solution to a coding conundrum can block the development of better, more effective solutions and expressions of the problem.
How patent law can obviate elegant code is reviewed in the next section. A short review of patent law The U. A full accounting of this divergence is impossible here; instead, I will review some of the parallels and differences between patent and copyright law, with which composition scholars are likely to be more familiar.
Knowledge of the differences between the paradigms of these intellectual property regimes will help to illuminate why many programmers are in support of copyright protection but not patent protection for code. Ray Parker, Jr. Code, copyright in Title 17 and patent in Title Case law also helps judges interpret the legal code for patents and copyrights.
Patents can be obtained for inventions in three categories: utility, design, and biological plant, with most patents falling into the utility category. According to U. A patent grants the right to exclude others from using the specified invention for 20 years the first U.
These rights are very powerful, and they are therefore balanced by a shorter time limit than copyright as well as by a disclosure requirement. In this way, the private investment of the inventor is recouped while the information the patent-holder provides ensures that the public interest is served once that limited monopoly expires. Copyright law pays attention to the composition process behind a work of authorship whereas patent law does not.
To prove copyright infringement, a rights holder must demonstrate that at some point during composition the accused actually copied the copyrighted work.
In contrast, patent law bars independent discovery; a person can infringe on a patent without knowing the patent existed. The DoE prevents people from trivially circumventing patents, but it can also curtail alternative inventions. It allows for multiple programs to be cre- ated that can fill similar needs without copyright violation; however, this method can still violate patents through the DoE. Patent applicants naturally try to claim as wide a scope as possible for their invention, but the USPTO can reject claims that are too broad.
This balance can work well when patent examiners have sufficient time and information to review applications; however, huge increases in patent applications over the last 30 years, as well as the limited information provided with software patent applications, have resulted in many overly broad software patents.
However, many of them are never challenged because patent litigation is expensive. Those with fewer resources are often forced to settle out of court to conserve their meager means, which may also skew case law to favor more powerful entities.
Specifically, she outlines the stifling of agricultural innovation in developing countries due to the power of plant patents held by more powerful developed countries. Just as multinational agricultural companies such as Monsanto can profit from the ownership of plant patents, large software-development corporations can use patents to exert disproportional control over what might otherwise be common innovations.
As will be seen below, small, under-resourced developers such as those in open-source software creation and software start-ups bear the brunt of this impact. Like copyright law, patent law is determined in part by case law or decisions from particular patent cases brought before the court. Major shifts in the policies for patent applications and the structure of patent courts have also had 2 For more information on the history and application process of U.
In the case of patents, many of these inventors are actually corporations to whom individuals assign their patent rights as a matter of employment. In line with a general trend in the courts to protect the intellectual property of corporations, decisions made by the designated court for patent appeals, the United States Court of Appeals for the Federal Circuit CAFC , and the Supreme Court throughout the s and s had the effect of sanctioning patents on software, although no U.
The Commission, made up of academics, scientists, and industry representatives, recommended in its report that legis- lation be introduced to expressly exempt computer programs as patentable subject matter Samuelson, Two Supreme Court rulings in the s affirmed the idea that computer programs were unpatentable; decisions in Gottschalk v. Benson and Parker v. Flook both indicated that the algorithms under review were not far enough removed from pure math to make them patentable.
Gottschalk v. Flook both indicated that only physical machines should be patentable, but in Diamond v. Diehr , the Supreme Court ruled that the presence of any physical component could make a method patentable. After Diamond v. Signature Financial Group , which unambiguously confirmed that an algorithm run by a computer—that is, software—was patentable, as long as it was useful.
Two more recent developments complicate this history of patent cases pertaining to software. Klemens demonstrated that the DMCA also offers a new kind of intellectual property protection. This protection prevents such activities as the sharing of large hexadecimal numbers that can be used to allow you to play a DVD on a computer running Linux i. The second major complication in software patent law is that the Supreme Court appears to be sanctioning business method patents while staying mute on the subject of software patents.
In the majority opinion in Bilski et al. Kappos , Justice Kennedy cited U. Since the patentability of business methods first opened the door to the patentability of software, this apparent contradiction creates uncertainty for software patents. To browse Academia. Log in with Facebook Log in with Google. Remember me on this computer. Enter the email address you signed up with and we'll email you a reset link.
Need an account? Click here to sign up. Download Free PDF. Elsa Noterman. A short summary of this paper. Download Download PDF. Translate PDF. The term has emerged in diverse, and at times conflicting, contexts — from city government public space initiatives and private real estate development branding,1 to explicitly anti- capitalist alternative economic practices forged in the cramped spaces of increasingly unaffordable and privatized cities.
It is this variability and ambiguity that Amanda Huron takes on in Carving Out the Commons by drawing on the perspectives and analyses of tenant organizers and limited-equity cooperative members in Washington, D. In examining the everyday ways that urban commoners negotiate these intensities, she also underlines contradictions within approaches to and practices of the commons more generally.
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