How SCOTUS missed the mark...
Just got finished reading a case for patents that has me ready to re-trace the footsteps I put on my ceiling when the Chicago-based referees stole game 4 of the first round of the playoffs from the Celtics on Sunday.* In other words, it made me rather unhappy (to put it mildly). The case, for those playing at home is Microsoft v. AT&T, and it's a Supreme Court case from 2007.
The facts are pretty straight-forward: AT&T holds a patent for a system of recording human speech. Both sides concede that Microsoft's Windows operating system, when installed on a computer, infringes on this patent. There is thus no argument about "domestic" infringement. The question the court attempts to answer is whether a provision of US patent law (which prohibits exporting "components" that, when assembled outside the US, infringe on a US patent) applies to the copies of Windows that Microsoft sends abroad -- to be installed on computers sold outside the US.
The majority holds that because Microsoft sends a "master copy" of the software overseas, and because computer manufacturers first make CD-ROM copies of the "master copy" of the software before installing the software on the computers, that all the components of the infringing device (the resulting computer with Windows on it) are made abroad, with none of them being supplied from the US. The court explains that software in the abstract (unfixed on any medium such as a CD-ROM) is not a component, but is more like a blueprint for a building. Thus, the relevant software, in the court's eyes is the copy made abroad, and not the original sent from the US.
The court couldn't be more wrong. By attempting to find a physical-world analogy for software, the court not only misinterprets how software works, it misapplies the existing law.
For starters, software should not be treated like a physical object. The court is correct in that the copying step (performed abroad) removes the US-supplied medium (the master copy) from being a component in the final product. However, it was not the medium (the physical disk that the software was sent on) that was to become a part of the final product -- it was the software itself. A byte-by-byte copy of the disk does not create a new work (thought it does create a new physical copy of the work). It merely re-fixes the US-developed software in yet another medium. The software, designed, written and tested in the US is not altered in any way by this process. The software that left the US ends up on the infringing computer -- the medium has changed (twice), but the software has not.
Second, the blueprint analogy is just dead-wrong. SCOTUS likens abstract (unfixed) software to ideas which lack a physical embodiment. However, software is an IMPLEMENTATION of ideas. The software requirements (or specification) can be seen as a blueprint -- they tell the developer what the software should accomplish. However, two developers looking at the same set of requirements can come up with two different pieces of software that accomplish what is required. The resulting code is an implementation of those developers' ideas, fixed in whatever medium is appropriate. Thus, completed software is more like a building than a blueprint. While on the blueprint/building analogy: imagine a modular home being delivered by truck to its location -- one would be hard pressed to make an argument that the home is not a physical embodiment because it is not affixed to a plot of land.
The court really seems stuck on this idea that in order to become part of a device the software has to be delivered on some sort of medium. However, the whole point of software is to be delivered and installed. The means of delivery should not be relevant in this analysis -- for there will be some means of delivery. This, coincidentally, is where the court misapplies the law. As pointed out by the dissent, the statute forbids exporting components that have "no suitable non-infringing uses." There is no possible use of Microsoft's Windows that would not infringe the AT&T patent! It can never be installed on any computer without infringing, and thus it cannot be "used" in a non-infringing way.
And now on to tax law (a much less controversial topic).
* I apologize for the total lack of sports-related blog postings, but you have to see it from my point of view: the Bruins do not exist in my world until Jeremy Jacobs sells the team (unlikely to happen), the Celtics are without KG and "the other" Leon (Powe) and are struggling against the Bulls (a team I despise almost as much as the Lakers, but not in that "wow, I respect them, but I hate them" way; no I hate them in a "I really can't stand these guys -- especially Joakim Noah -- and want them all to be trapped for days in an elevator with a large man who just ate a lot of beans, raw eggs and bad tomatoes" way). And I maintain that April is too early for baseball unless you happen to have tickets to the games (which I haven't had the opportunity to get this year).