This argument is quite simple. Because software is a form of speech, by restricting software through the use of patents, we restrict free speech.
- Software patents hurt artists. The digital art movement is small, but will grow over time. All digital art requires strong algorithms and programs to drive them. The most interesting art will emerge from the most innovative techniques... but if those techniques are patented (as they almost assuredly will be), the artists will be unable to use them without licensing them from the companies. Remember, the power to license, like the power to tax, is the power to destroy; in other words, this isn't just about "money". Companies should not be able to block the speech of the new wave of artists in this manner. If you think this sounds silly, keep in mind that the copyright system has "fair use" clauses, and this is one of the explicit "fair use" reasons: "transformative use". Despite the well-acknowledged need for this sort of protection, patents have none, because patents aren't built to handle speech. Copyrights, on the other hand, are built to handle speech and have the concept of a "compulsory license" that can handle this sort of use, under certain cases. (Look up "compulsory licenses" for more information.)
- Software patents hurt the public, by allowing companies to remove speech from the public discourse. If a company owns a patent on something critical, and the company decides they do not like what a licensee is doing, for whatever reason, they can revoke the license and remove that speech. I wish this was merely a far-fetched possibility, but an October 31st, 2000 article in the California Recorder, Suit Turns the Tables on Patent Critic http://www.callaw.com/stories/edt1031b.shtml, talks about Greg Aharonian and TechSearch. Greg is a patent critic, and apparently annoyed TechSearch. TechSearch owns a patent on a '"remote query communication system", which covers a method for compressing and decompressing data transmitted from a server to an end user.' From the article:
Aharonian had said the patent is so broad that anyone with a Web server could be sued for infringement.
"That's probably not incorrect," said TechSearch founder and president Anthony Brown.
Remember, the original purpose of the patent system was to protect objects and processes... it's hard to shut down free speech by denying somebody the rights to use a turn-signal stick. Aharonian's full speech is the message we would call the website, and the instructions on how to display and process his message. Because this company can patent the instructions part of his speech, the company can deny Aharonian the right to speak. This gives great power over speech to any entity that has a patent on anything relating to communication.
In other domains, such as copyright law, we have explicitly balanced (key word) the rights to free speech against the gains of the restrictions. Since nobody ever thought that patents would enter into the speech domain, there are no explicit provisions for free speech in them, so it should be no surprise that patent laws are not balanced to protect free speech. We would do not and do not tolerate such violation of free speech rights in any other domain. We should not tolerate this in the software domain either.