Opinion: The Supreme Court’s notion of software
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Not to get too far down in the weeds of Supreme Court argumentation and patent law, but a few of the comments from today’s oral arguments in AT&T v Microsoft suggest that at least some of the justices need to spend a weekend installing software on a PC (or Mac).
At issue is whether Microsoft should be held liable for infringing an AT&T patent every time its Windows operating system was installed on computers outside the United States. Redmond’s Finest has already copped to inducing U.S. computer manufacturers to violate the patent; the sound recording functions built into Windows tread on compression technology developed by Bell Labs (the patent expired in 2001, so the infringement claims stop after that point). However, Microsoft denies that it is liable for the operating systems installed on computers overseas.
The facts of the case aren’t in dispute, just the interpretation of the law. Microsoft supplied a single master copy of Windows to foreign computer manufacturers, and they copied the software onto the machines they sold. Under U.S. patent law and previous court rulings, firms are liable if they supply all or a substantial portion of the components that foreign manufacturers use to assemble an infringing product, but not if they simply provide a blueprint for those manufacturers. The idea is to prevent patent infringers from avoiding liability simply by having their products built overseas.
According to CNET News.com,
During hourlong oral arguments, some justices pressed attorney Seth Waxman, who represented AT&T, to explain why Microsoft is supplying anything more than a blueprint when it ships software object code on ‘golden master disks’ to foreign manufacturers for duplication and installation on individual machines.’A machine in Europe is following instructions just the way an artisan would follow a blueprint,’ Justice David Souter said to Waxman. ‘What’s the difference?’
I’m not a lawyer, but the question hints that Souter has no idea what software is and what happens when you install it. There’s nothing magical about master disks; they contain an installable copy of a software program, just like the packaged version sold in stores. Under Souter’s view, the computer code on a master disk is merely a description of a product that ultimately gets built by a computer. But computers don’t follow a master disk’s blueprint for building a program so much as they copy a program that’s already been built for them.
This is not to say that AT&T should win, as it did at the district- and appeals-court levels. The case raises important questions about whether U.S. patents should be enforceable on software copied and sold overseas. But it would be nice to know that before they decide this case, all the justices involved understand what software is.