Ben Klemens, Math You Can’t Use: Patents, Copyrights, and Software (2006), chapters 3 and 4 (on Canvas)
Alice Corp. v. CLS Bank, 573 U.S. 208 (2014). The most important passages are Part I.A (describing the invention at issue) and Part III (the legal analysis).
Notes: We start the course in earnest with intellectual property (utility patent and copyright) because the question of whether software can be owned forces us to ask what software is. Ben Klemens is a computational social scientist, rather than a lawyer or legal scholar. His argument against software patents is representative of the views of many computer scientists, and also well within the range of mainstream views among legal scholars. Alice is the Supreme Court’s most recent word on the subject.
Questions:
What is software, according to Klemens?
What is the difference between software and hardware? How sharp is the distinction?
Why does Klemens argue that software can’t software be patented? Is this a technical argument? Doctrinal? Policy? Conceptual?
Does Justice Thomas’s opinion in Alice adopt Klemens’s reasoning? Reject it? Ignore it? Is the line it draws more or less coherent than the one Klemens draws? Does it have better or worse policy consequences?
In what sense, if any, is software something that exists in the physical world? What is the significance, or insignificance, of this physicality to Klemens and Thomas?