Freedom of expression
Contents
First Amendment
The existing literature on the interaction between intellectual property law and the First Amendment almost always operates with the explicit or implicit assumption that patent law has no free speech issues. This assumption is not only wrong but backwards. Far from being no threat to free speech, patent law poses a greater threat to free speech than copyright law, both because patent protection is inherently stronger than copyright protection, and because patent law has developed none of the internal protections for free speech that copyright law has.
Patents, which function as government-sanctioned monopolies, invade core First Amendment rights when they are allowed to obstruct the essential channels of scientific, economic, and political discourse. [...] Suppression of free speech is no less pernicious because it occurs in the digital, rather than the physical, realm. [...] Like all congressional powers, the power to issue patents and copyrights is circumscribed by the First Amendment. [...] [R]estrictions on subject matter eligibility [should] be used to keep patent protection within constitutional bounds. Most of the First Amendment concerns associated with patent protection could be avoided if this court were willing to acknowledge that Alice sounded the death knell for software patents. [...] Given the vast number of software patents—most of which are replete with broad, functional claims—it is virtually impossible to innovate in any technological field without being ensnared by the patent thicket.
Access to communication technology
See also: Micro-blogging patents
Video Prison: Why Patents Might Threaten Free Online Video Slahdot: US Republican Candidates Sued By Patent Troll For Using Facebook - note the patent is rejected but being appealed
Discussing software development
Discussing software use
Inducement worries
Source code may be speech
First, source code, like the patent disclosures themselves, teaches how the invention works, rather than being the invention. If source code standing alone can infringe the patent, it is difficult to understand how handing out photocopies of the patent itself wouldn’t infringe. Second, in the US, courts may find source code to be speech, as we believe they should find, thus making source code subject to First Amendment protection. [... Furthermore...] liability for patent infringement can be imposed where one enables or encourages another to infringe a patent, but the requirements of knowledge and intent are more strict in secondary liability situations. Because a user must first compile the source code and install the software in order to infringe, a court is less likely to hold the community liable for inducing or contributing to the infringement.
See also
References
↑ Chiang Tun-Jen, Patents and Free Speech [ PDF ] , Georgetown Law Journal , Vol. 107, No. 2, 2019, p. 363, doi:10.2139/ssrn.3114931 . ↑ Intellectual Ventures I LLC v. Sumantec Corp. , 838 F.3d 1307 (2016). ↑ Jeong Sarah, A judge wants to make patent trolling a first amendment issue [ archived ] , theverge.com , 2016-10-07. ↑ Borella Michael & Lyons III George, Intellectual Ventures I LLC v. Symantec Corp. -- Judge Mayer on the First Amendment [ archived ] , patentdocs.org , 2016-10-26. ↑ Quinn Gene, It is time for Judge Mayer to Step Down from the Federal Circuit [ archived ] , ipwatchdog.com , 2016-10-06. ↑ Burk Dan L., Patents and the First Amendment [ PDF ] , Washington University Law Review , Vol. 96, No. 2, 2018-02-01, p. 200, doi:10.2139/ssrn.3119362 . ↑ Crouch Dennis, Microsoft Ordered to Stop Selling MS Word [ archived ] , patentlyo.com , 2009-08-12. ↑ Debian Patent Policy FAQ [ archived ] , softwarefreedom.org , 2011-07-04.
External links
Freedom of Speech in Software , 1991, Phil Salin Software and Software Patents , an essay that partly makes the freedom of speech argument Video Prison: Why Patents Might Threaten Free Online Video Save the Web from software patents , 30 Sep 2012, FSF