>>>THE WAR ON COPYRIGHT COMMUNISTS: Bill Gates wants software patents to protect his profit, not the public

Bill Gates is an intelligent man who has done a great deal of good in the world. So when he gets caught out in a bare-faced lie this should matter to all of us; and last week, when he called the opponents of American intellectual property law a "communist" movement he was encouraging a mistake that could impoverish the entire world.

He said: "Of the world's economies, there's more that believe in intellectual property today than ever. There are fewer communists in the world today than there were. There are some new modern-day sort of communists who want to get rid of the incentive for musicians and moviemakers and software makers under various guises. They don't think that those incentives should exist."

The argument in principle that Gates makes against "communism" starts in exactly the right place. But his vested interests lead him to drag it in the wrong direction. It is as if the Sheriff of Nottingham were to announce that it's enormously important that your property was protected from criminals - so he'll take everything you have that might be stolen and lock it up for safety in his castle.

To start with the good bit of his argument, it is true - as Gates says - that intellectual property matters and copyright benefits the whole of society, and needs to be enforced. The market is a very efficient way of producing good software, and if it is to work then the rules must be enforced, and copyrighted software protected not just by law, but by active policing. Copying without permission seems a victimless crime; but in the long run it is a crime of which we are all victims.

This is not just an argument in fairness that says that the author of a work deserves the reward of his or her labours. There is the argument from efficiency, and social benefit. Copyright makes possible a proper market in intangible goods, which means more of them will be produced, which means we all will benefit.

Markets aren't the only system by which software gets produced. Plenty of books were produced for love, or without the hope of gain. Shakespeare could hardly have written more if he had been rolling in royalties. Even today, a great deal of the most important software in the world is freely produced and freely given away. Every time you connect to the internet, or look something up on Google, you are relying on software at the other end of the connection which, like Linux, is free for anyone to copy or use.

This puts a painful cramp on Microsoft's monopoly. You can see why Gates hates it. If the free OpenOffice software, which can largely replace Microsoft Office, caught on, the cramp would become more painful still. But if Microsoft loses its 69% profit margin on Office, that's not communism, or even anarchy. The free software movement is protected by intellectual property law as much as commercial software is, since copyright law ensures that the code which has been freely given away cannot be taken back into private ownership. And most of the important stuff is written by programmers employed by large companies to strike back at Microsoft. Sun, for example, writes almost all of OpenOffice. That's global capitalism at its nastiest - and most inventive.

The real problem with Microsoft's monopoly is that not even Microsoft can compete with its own products - there's no reason to buy new ones when the old ones work well. It has been years since it came out with any program so immediately attractive that people wanted to upgrade. This is a very unhappy position, but that's capitalism.

No law of nature says that companies have to stay profitable just because they were in the past. This is a problem for the whole software industry, but the solution Gates favours is bad for all of us. This is to get governments to supply the missing law and to ensure that Microsoft and other large companies will be profitable for ever, at the expense of any smaller, newer, hungrier ones. Software will be protected not just by copyright, but by patents. This makes about as much sense as patenting jokes.

Software builds on other people's ideas. Claiming royalties on certain fundamental ideas looks like an easy road to endless riches: BT attempted to patent the clicking on hyperlinks in the world wide web. Microsoft has applied for 1,500 patents, some of them nearly as ridiculous. If these were granted, or enforceable, it would stifle innovation and work against the beneficial effects of copyright.

Copyrighting allows people to benefit from their labours, but software patents allow the companies with the largest legal departments to benefit from everyone else's work. For the moment, the folly stops at the borders of Europe. An attempt to allow software patenting within the EU was halted last month by a Polish veto, which shows that a post-communist country understands the demands of a market capitalism better than the world's richest capitalist.

Andrew Brown