Copyright and patents protect entirely different kinds of software. Copyright protects software that's more work to write than to think about (e.g. Windows). Patents protect software that's more work to think about than to write (e.g. PageRank or whatever's inside Google's self-driving cars).

Why not grant patents to the self-driving car as a whole? In Canada, you cannot patent software unless it's within the scope of a physical product, like a car.

Also, PageRank clearly doesn't need a patent. Google's done just fine against competitors that have ripped off their technique.

> Why not grant patents to the self-driving car as a whole?

How do you do that?

The first person to think of the concept of "self-driving car" gets the patent? That will just lead to a flood of patents on things that don't exist yet -- basically a patent troll's dream.

Perhaps the first company to build a working prototype? What happens to all the other companies that almost have a working prototype -- do they now have to sit on the sidelines for 10 years?

How do you even know what a "working prototype" is in that scenario? Is it acceptable if it is just capable of driving on straight roads during sunny days with no other cars or people around?

I think patents on specific, narrow pieces can make sense: for example a laser-based 3D vision system, or a specific algorithm that identifies people about to walk in front of the car (even that is tough, because there's a thousands of very distinct approaches to that problem).

Patenting the entire system (the "self-driving car") makes about as much sense as say, Herman Miller patenting the concept of a wheeled office chair. They can patent elements of their lift mechanism, specific wheel designs, or arm adjustments, but not the concept of combining wheels and a place to sit.

A very large number of patents also protect Windows and its component parts and methods such as the file system; when other OSes have tried to be compatible in any way, Microsoft has demanded and gotten royalties, for example from Android phones.

This is a nice concise explanation, thanks!

Well, copyright covers an implementation of software, but a clean-room rewrite can get around a copyright of software. In that way, no, copyright is not a real way to protect software.

And why should a cleanroom implementation be an infringement? It is not a true derivative copy. Either way, software is more akin to language or math, certainly not mechanics. We have copyrights for language, and narrow patents on applications of mathematical formulas (which in itself is debatable in its justification).

Copyrights are sufficient. You shouldn't be able to tell someone they can't use a certain software algorithm in their own program, in a different language, in a different domain. That stifles innovation.

That's what ought to be correct, but the recent decision against Facebook on VR cut directly against this view - as I understand it unavoidable mathematical and logical similarities were treated as if patented procedures. Similarity was the only thing considered. Which might force companies to the immense expense of "clean-rooming" almost everything they create to avoid problems. And that might not be a guarantee; patent law is very badly messed up by now, and Congress has refused to get involved in many issues, such as patent misuse (since the current confusion favors large companies/political campaign contributors who can best afford large legal teams and long trials.)

By prohibiting a clean-room rewrite you're skirting dangerously close to attempting to prohibit independent reinvention. That is, without hyperbole, one of the most abhorrent ideas I've ever seen.

Thankfully, software patents are unenforcable in most of the world and willfully ignored by large parts of it.

Your analogy doesn't quite fit. Copyright covers both the source code, which is more analogous to the schematics than the manual, and the binaries.

If a physical machine is not under patent protection you can strait up copy it and start manufacturing your own version. With software you have to go through an extra "clean room" step to get around copyright. In practice the clean room reverse engineering process is rarely utilized because it is expensive and fraught with the risk of a lawsuit from the copyright owner.

Yes, this is a major issue in copyright law. In practice, there is no distinction between the patent-eligible invention (the machine) and the copyright-eligible "creative work" (the manual, or the code, in this case).

That means that copyrights can be exerted in very menacing ways, like requiring users to bypass a copy protection mechanism in order to do required maintenance, as John Deere has done. That enables John Deere to pursue anyone who doesn't use an official dealer for maintenance under the DMCA's measures criminalizing the circumvention of copy protections.

Disclaimer: Not a lawyer, probably wrong.

Saying that there is no distinction isn't correct.

The scope of a patent is much broader than a single coded implementation. The copyright doesn't protect the functional aspects of the code, it only protects it as a written work. However, companies have managed to twist the concept of infringement via reproduction, and bypassing of copy protection.

Accessing a copy of code stored in memory is now considered creation of an unauthorized reproduction, bypassing copy protection under DMCA, and/or the like.

This type of protection shouldn't exist apart from preventing partial and wholesale copying and redistribution, paralleling the treatment of novels, etc. If I own a novel, I can do whatever I want to do with that book. I can write on it, annotate the margins, remove pages, make photocopies of parts of the book for personal use, etc.

With code, I can't do this? Why?

Yeah, I agree. That's what I'm getting at; in the physical world, there is a bright line between "an invention" and "a copy". You buy a reproduction of an invention, or a physical reproduction of a copyrighted work, and that reproduction is a discrete unit owned by the purchaser and not really subject to the limitations of IP (only insofar as the fundamental components are directly copied to deprive the inventor/author of the proceeds).

In cyberspace, many things that should be considered "inventions" for IP purposes, and thus subject to the much more limited extent of patent protection and for which each individual unit is an unprotected entity, are instead considered "new copies" of a copyrighted work, under which substantially more aggressive licensing restrictions are typical, and under which the definition of things like "infringement" and "derivative" are much more restrictive.

A software program should be an invention under patent law, and its copies should be considered discrete physical units. The code itself may be copyrighted, just as the plans for an invention may be, but the produced binaries probably should not be. Rather, they are units of the invention regulated as normal goods.

This has become even harder as we have gone to mostly-digital software distribution. You used to be able to easily resell software if you had a CD. Now you can't even do that (which, by the way, is no small motive for the companies; it completely obliterates the secondary market for software).

IANAL