In your email box one day you find an email with the subject line,
“Software Patent Infringement: Demand of Payment.” Your curiosity
piqued, you open it up.
The body of the email explains that you recently downloaded a patented
software product called “Hot&Ready,” produced by “S8tan666”.
Hot&Ready is currently in operation on your computer, acting as a
pornography server. You are now delivering over 3 gigabytes of lewd and
lascivious material to points unknown every hour.
A bit shocked by this, you read on.
Fabian Woodsworth III, S8tan666’s Florida-based lawyer, has written this email to demand payment for your illegal use of Hot&Ready. He explains, using complex legalese, that this pornography server software is a unique product protected by US and International patent law. Your downloading and use of Hot&Ready is unlicensed and illegitimate. You therefore owe S8tan666 lots of money in compensation.
If you fail to pay the amount specified immediately, you’ll be taken to court.
This scenario is not unrealistic. Malicious software — also known as “malware” — is installed on home PC’s every day without their users’ knowledge. It can happen when you visit a web site, or even open an untrusted email message.
So having a hacker like S8tan666 hijack your PC with malware for illicit purposes, like serving pornography, is not unheard of. Some would say it’s a trivial matter.
However, no hacker has ever figured out that they can actually charge you for your use — legitimate or not, wanted or not — of their nefarious inventions. No matter how you acquire an intellectual property, you are required to respect any applicable laws governing its use.
Consider the case of Saskatchewan farmer Percy Schmeiser.
In 1997, the international chemical and seed giant, Monsanto, found traces of their genetically modified canola seed on his property.
Developed to resist their proprietary brand of insecticide, “Roundup-Ready” canola seed was a patented product. And that patent belonged to Monsanto.
Schmeiser was a traditional farmer and exclusively used seeds his family had developed over generations of farming. He’d never purchased any Monsanto seed.
Yet testing confirmed that Monsanto’s seeds were present in his fields. Claiming patent infringement, Monsanto threatened to sue unless Schmeiser paid them significant damages.
Several of Schmeiser’s neighbours admitted to him that they used Monsanto’s seeds in their fields. One farmer explained how he’d accidentally spilled thousands of acres worth of seeds on a road beside Schmeiser’s fields. This was the likely source of contamination, the seeds blowing onto his property from the road without his knowledge.
Believing he was in the moral and legal right, Schmeiser bravely decided to fight Monsanto. He went all the way to the Supreme Court of Canada. He lost every battle.
In 2004, the Supreme Court ruled that, regardless of how Monsanto’s seed had arrived on Schmeiser’s field, he was responsible for their being there. Even though the farmer had never wanted the seeds present in his property and had no awareness of their presence, he was still in violation of the patent.
The judgement defies logic and morality. Such is the power of patent law.
Monsanto had patented a particular seed, a genetic form. The patenting of life was unheard of until very recent times and, until tested against Schmeiser, its implications were unknown.
The legal protection of intellectual property, like software, is much more well established and recognized. And unlike Percy Schmeiser, who truly carried no intent to use Monsanto’s patented seed on his land, the acquisition of malware by an unsuspecting web or email user occurs in a muddier context.
When you engage with a web site you are, in essence, accepting some form of inferred acceptable use contract. As users, we don’t always know what a web site does, or is doing. It doesn’t always tell us it’s putting files on our computer, or executing an application. It doesn’t tell us that it’s installing a pornography server on our hard drive.
Yet, as we can learn from the grave loss of a Saskatchewan farmer, all of that is irrelevant. If we are seeded with a patented software product, knowingly or otherwise, we are responsible for upholding the terms of its patent. Worse, if our engagement with the vehicle of the product’s delivery carries even a modicum of intent — a web site, say — we certainly are in acceptance of those terms.
The matter of whether it’s a genetically modified seed or a pornography server is irrelevant. We have infringed.
So you see, S8tan666 and his lawyer are in the right. You should pay the bill they’ve emailed you. Then lock down your PC.
It’s a wonder that we don’t see this form of patent protection in the software industry already. After all, the internet is well stocked with unprotected PC’s.
Maybe the hackers of the world don’t pay attention to farmers’ rights issues, or maybe immoral lawyers haven’t yet saturated the accidental injury market, who knows.
For a moment, though, take this one step further. Imagine how even large software firms could use this manner of illicit delivery and licensing enforcement to overcome the obstacles and financial losses of software piracy.
I can see the next huge corporate merger already: genetically modified life meets digitally modified lifestyle. Introducing Microsanto.
Copyright 2005 Andrew Robulack
Originally published in the Yukon News, May 13, 2005