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ON THE SOFTWARE PATENTING CONTROVERSY 795

outcome is that, over time, much less software would Historically, within the U.S., the argument for
be available, to the considerable detriment of society. such protection of intellectual property is political
We conclude that the above show that software rather than economic. It is a dual argument that
patents are, in fact, valuable to society; software is the says both that (a) some economic success associ-
major element of many critical societal systems (15), ated with the creation of ideas is necessary to get
and society will benefit by motivating additional such new opinions out into the “marketplace of ideas”
innovations. There was a short period of innovation and that there is political benefit to the dissemina-
that occurred during a time when software patents tion of a range of such ideas; and (most especially)
were not allowed, but, in our assessment, this was a (b) U.S. legal tradition displays a strong penchant
transient effect at the beginning of the software era. for a philosophy of personal property ownership.
The level of innovation was due to that newness and Remember that in many of the societies that existed
not to the lack of software patenting. concurrent with the founding of the U.S., all of the
property was owned only by the sovereign. No pri-
POLITICAL, ETHICAL, AND PHILOSOPHICAL vate person could own property; instead, they could
ARGUMENTS only obtain something akin to a lease, which could
It is worth remembering that for more than 2,000 be revoked by the sovereign at their pleasure, at any
years, legal and economic arguments were used to time, for any reason. This was felt by the founders
justify slavery (it is also interesting to note that some of the U.S. to be an economic obstacle to prosper-
studies, for example Suzanne Miers’ book Slavery ity, but even more so as a moral and ethical barrier
in the Twentieth Century, offer evidence that there to justice.
are more slaves in the world today than any time in What brought about this attitude was a religious
th
human history). So one may wish to scrutinize the revolution. In particular, in England during the 17
century, there was a strong movement to revert back
arguments for and against software patents from per- to the Old Testament — the Jewish Bible — for scrip-
spectives other than that of the law and economics as tural authority rather than the New Testament; this
a precaution against unintentional but undesirable is the basis for many well-known religious move-
consequences. In this section, we therefore consider ments of the time, including the Pilgrims and the
political, ethical, and philosophical arguments. Some Society of Friends. The philosophical emphasis in
authors, of course — Heinlein in his book Starship the Old Testament is on justice in this world (the
Troopers is a famous example — would consider this book of Amos is a good exemplar of this philosophy)
list redundant, arguing that politics is simply the rather than the focus on individual salvation found
embodiment of public ethics and philosophy. in the New Testament. This reversion to a focus on
The reason why societies provide protection for the Old Testament colored the philosophical ten-
intellectual property is to stimulate future innovation dencies of the next 200 years. The U.S. founders all
through the positive example of allowing past inno- grew up steeped in that tradition; those who left
vators a chance to benefit from their innovations; the England for the North American colonies tended
mechanism used to implement this chance to ben- to be disproportionately proponents and adherents
efit is a period of monopoly, which is what a patent of the new religious philosophy.
provides. In The Federalist Papers (the essays that in Furthermore, English politics of the time were
essence form the discussion and argument behind overtly corrupt, with practices like buying votes,
the U.S. Constitution), this approach was rational- both from the populace in general elections, and
ized not on economic grounds, but on philosophic, from members of Parliament for votes of bills, being
moral, and ethical grounds — in essence, on political open, acknowledged, and pervasive. Several of the
grounds. The founders were indeed concerned with U.S. founders were disgusted by this and cited this
“promoting the general welfare,” but their primary as a reason all on its own to separate the Colonies
concern — as we will establish below — was promot- from England; Benjamin Franklin, who lived in
ing the “natural rights” of mankind. London during much of the decade prior to the U.S.