On the latest episode of Build and Analyze, Marco Arment tries to reconcile his belief that copyright infringement is always wrong and never a legitimate form of protest—we should simply stop consuming the works in question—with his statement that almost all software developers will inevitably and unavoidably practice and infringe a software patent. He does this by saying that developers will inadvertently infringe a patent that the developer didn’t even know about, but you almost never accidentally copy a song or movie or tv episode.
I don’t think this distinction gets him very far. If I randomly copy a big chunk of a friend’s early jazz collection and start playing it on shuffle, is that not just as wrong? True, some of the songs could be published under a Creative Commons license or even in the public domain. I don’t know for a fact that my copying any specific song is infringement, especially if I’ve never heard these songs before and don’t know when they were published, or even who the author is. But I have almost certainly infringed someone’s copyright.
You never accidentally write a piece of software and publish it. Xcode doesn’t type up code by itself (though that would be an awesome feature) and Apple does not steal binaries from your computer and upload them to iTunes Connect without your permission. If you know that by publishing your app you have practiced someone’s patent, that’s also wrong even if you don’t know which patent it is. If the probability is high enough that you are infringing a patent, it shouldn’t matter very much that you don’t know which patent it is.
I wouldn’t necessarily conclude that copyright infringement is ever the right thing to do, or not wrong, but it follows naturally from Marco’s position on copyright infringement that publishing software in the current patent regime is wrong. So Marco should stop doing that.
PS: Don’t stop selling Instapaper, I love that app.