"As hacker groups continue to wreak chaos around the Internet like so many pirate ships terrorizing coastal waters, Sony is vowing their online digital fortress is as rock solid as can be," this reported from the latest Capitalist press, Saturday, June 18, 2011. The article was in response to how hackers pose a threat to corporations. Why would hackers do that? Because Sony illegally charged their bank accounts by hundreds of dollars when they had bought the game Call of Duty -- a released and updated version that, simply put, didn't work for six weeks after being sold. [*2]

     "All I can tell you is we're more secure than we've ever been, and more focused than we've ever been at it," Sony CEO Jack Tretton said in response to the hack attacks. He made no comment that he had sold a bad game that didn't work, ignoring the thousands of complaints requesting a refund on their defective merchandise.

     Another article, actually written and published by the cartel known as the Chamber of Commerce, said, "Pirates aren't what they used to be. No longer content with sailing the seven seas, they're now entering the open waters of the Internet, searching for new sources of stolen treasure." He even went on to say, "Sadly, many computer users downloading copyrighted content aren't even aware that they are trafficking in stolen property." [*3]

     The Business Software Alliance (BSA) is a group of Capitalists united for the purposes of "eliminating piracy." Its own members market games that themselves are known to contain content pirated from musicians and artists, though courts have been uninterested in this type of piracy. [*4] Regardless, the BSA imagines itself to be an anti-pirate organization, while selling software that it has pirated. "The best way to change behaviour is through general awareness campaigns to prove to people that there is value in buying genuine software..." their spokesman said. The BSA has not responded to my inquiries, otherwise demonstrated, that their partners are making money off of pirated material. [*5]

     There's only one major, significant problem with all of these statements. All software bytecode is in the public domain. What do I mean by that? I mean, explicitly, that these anti-piracy organizations are going after people who are distributing public domain material. That is, material owned by nobody, except the public, which anyone can do anything with that they like. The well-respected law publisher, Nolo, has released a book on the issue of public domain by Stephen Fishman. He clearly breaks it down...

"...when a patent is issued, the patent description and drawings are published into the public domain as part of the terms of granting the patent to the inventor." [*6]

     An invention that is patented is public domain, but it empowers the patent-holder with one thing: to make and distribute physical copies of the device that use the patent design. With software, there are no physical copies -- it is all a set of instructions. The patent itself contains every detail necessary to make the program run on your computer. However, you can buy a computer without buying a "set of instructions" (software) already on it, and then just apply the set of instructions yourself (install the software). This is different from patents for factory equipment or chemical processes; for such patents to be of any use as public domain material, one must purchase very specific equipment, typically from the patent holders.

     Yet, the law often looks the other way when people use the ideas of patents themselves, as long as such use is personal. For example, sandwiches are patented, but not many have been prosecuted for making one by themselves without acquiring the "inventor's" permission. [*7] Owners of patented software, however, believe the law should work differently in regard just to them. In case you're worried about breaking the patent law in regards to computer software, ask yourselves if you've ever stolen ideas from the following patent, filed and accepted in 1999....

"A sealed crustless sandwich for providing a convenient sandwich without an outer crust which can be stored for long periods of time without a central filling from leaking outwardly. The sandwich includes a lower bread portion, an upper bread portion, an upper filling and a lower filling between the lower and upper bread portions, a center filling sealed between the upper and lower fillings, and a crimped edge along an outer perimeter of the bread portions for sealing the fillings there between. The upper and lower fillings are preferably comprised of peanut butter and the center filling is comprised of at least jelly. The center filling is prevented from radiating outwardly into and through the bread portions from the surrounding peanut butter." (U.S. Patent No. 6,004,596)

     "A crimped edge along an outer perimeter of the bread portions" -- I guess anyone can be a patented scientist today. Imagine if you had made a sandwich before 1999. You had illegally acquired designs that weren't even released to the public yet. If the patent holders of the sandwich were as aggressive as software patent holders, you'd be sued for ten times the price of the sandwich, because you had acquired a special, "preview" license of unreleased, intellectual property! [*8] Your behavior may even fall under the Economic Espionage Act of 1996 for violation of trade secret law. [*9]

     Thankfully, though, a sandwich is a physical object, and software is not. A piece of software is simply an idea, so a description of software is the idea. Giving that description, properly formatted, to a computer, is the same thing as installing the software. A description of the sandwich, however, is not a sandwich, though. Only the sandwich makers can produce that sandwich and distribute it. Only the patent holders can produce their working idea, which means installing it on a computer. Anyone can distribute the idea of the software, which is the program's executable code itself, just like anyone can distribute the patent to a sandwich -- they're both in the public domain.

     Normally, logic is never applied to law. It relies on precedent, orders, commands, like religion, and never logic. But, I dare venture forth and offer this paradigm: (1), If software is patented, then the software itself is in the public domain, because all patents are in the public domain. And (2), If software has not been patented, or if the patent for it does not sufficiently describe it's workings, then it's not protected, intellectual property. If it's patented, then it's public domain, and if it's not patented, then it's public domain. Many well-respected lawyers today, as well as the government patent offices they work for, have even argued Software Patents Cannot and Do Not Exist! [*10]