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Do Judges, And The Public, Understand Software?

Do Judges, And The Public, Understand Software?

I have been writing programs since high school. I have designed hardware and software and I think I have a pretty good idea what software is, how it works and what it means with respect to copyrights and patents. Unfortunately I do not think the public at large, and judges that have to make decisions about it from a legal standpoint, really understand what software is or how it works.

Figure 1. The US Supreme Court recently ruled on Alice versus CLS Bank.

The US Supreme Court recently ruled on Alice versus CLS Bank. It addresses software patents as inventions. It invalidates a patent in this particular instance but it remains to be seen what the impact will be on software and business patents in general. 

The system in the claim was an implementation of an electronic escrow service that facilitated financial transactions. Sounds relatively generic.

Patent cases are not that common. The last one that the Supreme Court heard was Bilski versus Kappos.

IANAL (I am not a lawyer) so I’ll let the experts address the legal issues and effects of the ruling. We will have more here on Electronic Design in the near future.

What I did want to address is the general publics’ typical misunderstanding of how software works and what it means to license, copyright and patent software. Of course, even some programmers and developers may not understand the details and implications of the latter and there is a lot of misinformation out there.

For example, many do not understand that the same function can be implemented on a computer using a range of languages, hardware and operating systems. People typically relate to an application they are using. If the computer (smartphone, tablet, etc.) does not work as expected then it is the application’s fault.

And have you ever tried to explain to someone how a computer virus works, why it is hard to write antivirus software and why this software cannot be bulletproof? Did you ever try to explain how a program works or, better yet, how a microcontroller works? The 10,000 foot view does not count. Just remember this when you try to justify secure boot support in your next project.

This would not be as much of an issue if it was simply consumer misunderstandings that tech support might be able to address. The problem is that people are making legal decisions about software.

I am not the only one concerned with this issue (see “The Supreme Court doesn't understand software, and that's a problem”). I suspect that many of you are concerned about it.

It is generally agreed that patent and copyright needs change but there are a lot of entrenched parties. We can hope that this new ruling is the start of something good but one point does not indicate a trend. Recent updates to patent law has stalled.

Then again, I tend to be an optimist.

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