Software patents and mental health

or, why you should not kill yourself for using a computer

Every so often we read news that a "patent troll" has somehow obtained a "trivial patent" that makes it "illegal" to use basic maths that practically all computing depends on. This is especially hard-hitting for those who depend on computers to overcome a disability. Believing you are a criminal can produce extremely negative emotions (many religions say crime slaps God himself, and many non-religious people are also affected); guilt feelings can even result in suicide (although they shouldn't). Perhaps this "reality check" can help:

Patent law is not criminal law.

Patent infringers are not criminals, they just might owe money. The wording that patent law uses doesn't help: we might associate "damage" with vandalism, "infringement" with intrusion, "unlicensed" with illegal driving, and "right" with human rights, but in patent law these words are merely about who owes whom how much. It's not the same as copyright law.

They have to bill you first.

You don't have to spend sleepless nights checking every nook and cranny of your computer to see if you've accidentally done 2+2=4 in a way you're not supposed to. True, a patent on this would say you "can't" do it without permission, but this "can't" is a civil "can't", backed up by a law that is basically about resolving disputes, which means you won't even owe anything until they actually dispute---with you, not with BigCorp Inc. Even if BigCorp made a poor defense and lost, you still can't owe anything until they come after you (and the patent might be overturned before they get that far). Meanwhile, you're not obligated to take the initiative to check your maths for what they might want to know. It's not the same as tax law.

You can't owe more than you've got.

If the worst comes to the worst and a court orders you to pay all the money in the world as a punishment for your 2+2, then bankruptcy is a legal provision you can take, and you can take it in good conscience as your debt was not brought about by any gross negligence on your part. (Note the word "gross"---no human can be expected to have absolute zero negligence, as that would need absolute perfection.) Bankruptcy usually lets you keep certain minimal assets and then get on with your life; the rest of the debt is cancelled. As you can do that in good conscience, you won't have to feel guilty about it afterwards, so you don't have to live in fear of such guilt now.

You're not criminalising others.

If you've written a program and given it to a friend, and you've done your 2+2=4 in the wrong way, that might increase the chances of the "patent troll" going after them, and this prospect might make you feel guilty of "setting them up" (even though they're probably infringing anyway if the patent is that trivial). But remember you're not making your friend a criminal; at worst, you're slightly increasing their risk of trouble. You might also have given them a common cold, or said something upsetting, or kept them talking for just long enough to make them miss the bus that got blown up by terrorists in 2005 (I know someone who did), or indeed given them a useful program whose benefits outweigh the risks. Some risks are "low enough"---as Musa points out in Software Reliability Engineering, most people are happy to use the road system and wouldn't think twice about encouraging others to use it when necessary despite the risk of crash.

Some countries do criminalise, but only serious cases

Apparently Switzerland (and maybe Germany) have criminal laws in effect as of 2011, but the infringement must be deliberate and non-trivial; criminal courts tend to have higher standards than civil courts.

What if a country criminalises the infringement of trivial patents?

Then perhaps anyone could go to jail at random, but that's still no reason to feel guilty because overstepping an unknown or extremely unclear regulation can hardly be described as "taking a stand against" law or justice. Governments might legislate the amount of diligence required; if all citizens must check through millions of patents before using any tool or technique then this would jeopardise practically everyone's survival (because it would effectively say "stand still and don't move even if life is in danger"), so it could sometimes be overridden by the Nuremberg trials' ruling that a country's laws should not be placed above "a higher natural law of justice", although conscientious citizens would still follow it to the extent possible under that "higher law". This is a hypothetical situation if patent law is not criminal where you live and/or there is no legislation requiring excessive diligence.

(You could also say that "obey the law" is actually a shorthand for "do as the authorities ask", which means we don't have to obey any still-standing archery-practice law from 1515 because modern authorities would not ask for that. If for some bizarre reason they suddenly decide to throw you into jail on a technical point alone, that shouldn't make you a "real" criminal.)

Conclusion

If flaws in the system allow trivial patents to exist, then the chances are we're all using those patents, so "patent trolls" can use civil law to litigate anybody, just as criminals can use physical law to assault anybody. Therefore, feeling guilty about being open to trivial lawsuits might be likened to feeling guilty about being vulnerable to criminal attack---while reasonable precautions are sometimes advisable, it's not a crime to fail to provide absolute protection, which is humanly unattainable.