A discussion of software intellectual property, inevitably drifting into a discussion of software patents, and their impact on free or "open" software.
Subject: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Tue, 04 Aug 1998 17:58:04 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 26 Information at http://opensource.oreilly.com/townmeet.html Pamela Samuelson is a highly respected leading, if controversial, intellectual property (IP) scholar who has criticized existing copyright and patent protection of software. She argues for sui generis -- special case -- IP protections for software and is the author of several significant articles on this topic. She has a website with bibliographic and biographic information, as well as a selection of papers at http://www.sims.berkeley.edu/~pam/ I'm thrilled to see her included as a panelist in the upcoming Open Source Town Meeting, Friday, August 21, 5-6:30 p.m. at the Fairmont Hotel in San Jose, California ($10 admission). Kudos to O'Reilly and/or responsible parties for arranging this. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:41am up 52 days, 8:10, 3 users, load average: 1.12, 1.14, 1.17
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Tue, 4 Aug 1998 21:36:49 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6q8nc2$8n8$1@camel25.mindspring.com> References: <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 15 Karsten M. Self wrote in message <35C74BAC.547245AC@ix.netcom.com>... >Information at http://opensource.oreilly.com/townmeet.html > >Pamela Samuelson is a highly respected leading, if controversial, >intellectual property (IP) scholar who has criticized existing copyright >and patent protection of software. She argues for sui generis -- If you attend, you should realize that her views are way out on the fringe, legally. She has written articles against all patent protection of software, and against all copyright protection of object code.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 05 Aug 1998 00:43:46 -0700 From: Bruce Hayden <bhayden@uswest.net> Message-ID: <35C80D32.C7F5795F@uswest.net> References: <6q8nc2$8n8$1@camel25.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 52 Roger Schlafly wrote: > Karsten M. Self wrote in message <35C74BAC.547245AC@ix.netcom.com>... > >Information at http://opensource.oreilly.com/townmeet.html > > > >Pamela Samuelson is a highly respected leading, if controversial, > >intellectual property (IP) scholar who has criticized existing copyright > >and patent protection of software. She argues for sui generis -- > > If you attend, you should realize that her views are way out on > the fringe, legally. She has written articles against all patent > protection of software, and against all copyright protection > of object code. My view is somewhat similar. Though I respect her and her accomplishments, I will also say that I have gotten into some very heated software copyright debates with her in particular in the cni-copyright list, where she seemed to drop out after "losing" (in my mind) rather badly to the other copyright profs in that list. In any case, my special criticism though is directed towards her position on software patents. If you read at least the older versions of her Manifesto, I think that you can best describe her position as not having a clue as to what is patentable and what is not as far as software is concerned. Of course, the Manifesto can best be seen as a sales tool for her version of sui generis software protection legislation. The result there is arguably a slanted view of both software copyright and patent law, slanted to sell the need for sui generis legislation. But of course, I disagree with the Manifesto to a very great extent. I find the combination of copyright and patent protection more than sufficient to protect software adequately. Indeed, I would suggest that many in this forum consider patent protection too strong for software, instead of not strong enough, as argued by Prof. Samuelson. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 05 Aug 1998 18:03:44 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C89E80.1745356F@ix.netcom.com> References: <35C80D32.C7F5795F@uswest.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 66 Bruce Hayden wrote: > > Roger Schlafly wrote: > > > Karsten M. Self wrote in message <35C74BAC.547245AC@ix.netcom.com>... > > >Information at http://opensource.oreilly.com/townmeet.html > > > > > >Pamela Samuelson is a highly respected leading, if controversial, > > >intellectual property (IP) scholar who has criticized existing copyright > > >and patent protection of software. She argues for sui generis -- > > > > If you attend, you should realize that her views are way out on > > the fringe, legally. She has written articles against all patent > > protection of software, and against all copyright protection > > of object code. > > Of course, the Manifesto can best be seen as a sales > tool for her version of sui generis software protection > legislation. The result there is arguably a slanted view of > both software copyright and patent law, slanted to sell > the need for sui generis legislation. > > But of course, I disagree with the Manifesto to a very > great extent. I find the combination of copyright and > patent protection more than sufficient to protect > software adequately. Indeed, I would suggest that > many in this forum consider patent protection too strong > for software, instead of not strong enough, as argued > by Prof. Samuelson. Even I will admit to being a bit mystified by the Manifesto. Having started with her earlier paper, "CONTU Revisited" (Duke Law Journal c. 1984), which challenged the legal arguments for covering software under copyright, I'd gathered she generally felt that SW IP was headed for overprotection, and needs its own form of IP to correct this. The Manifesto makes the opposite case, a decade later -- SW IP is underprotected and needs its own form of IP to correct this. Me, I'm just sitting in the middle, confused. I have to agree with the logical consistancy of many of the arguments made in "CONTU". OTOH, copyright seems to serve the needs of Open Source Software (OSS) very well, as for example in the GPL and other OSS licenses, so I won't complain too loudly. I am beginning to convince myself that OSS will prevail over patent by similar mechanims -- working within the existing law to protect itself from proprietary appropriation *and* patent challenge. Hopefully this will make both the lawyers and the programmers breath easier. The Manifesto, interestingly, comments on the quantity and quality of "freeware" available in the SW world, though it doesn't make a major point of the issue. > Bruce E. Hayden bhayden@uswest.net -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:51am up 53 days, 8:20, 3 users, load average: 1.05, 1.23, 1.14
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 5 Aug 1998 13:48:11 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qageq$vtk$1@samsara0.mindspring.com> References: <35C89E80.1745356F@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 21 Karsten M. Self wrote in message <35C89E80.1745356F@ix.netcom.com>... >Even I will admit to being a bit mystified by the Manifesto. Having >started with her earlier paper, "CONTU Revisited" (Duke Law Journal c. >1984), which challenged the legal arguments for covering software under >copyright, I'd gathered she generally felt that SW IP was headed for >overprotection, and needs its own form of IP to correct this. The >Manifesto makes the opposite case, a decade later -- SW IP is >underprotected and needs its own form of IP to correct this. Me, I'm >just sitting in the middle, confused. The argument for sui generis seems to depend on the claim that software is qualitatively different from other technologies. And yes it is, in some ways. But if this justifies sui gen, then it seems much easier to make the case that other technologies are different, and should have sui gen. Eg, genetic engineering, other biotech, integrated circuits, drugs, etc. Are there also law professors making a career out of arguing for sui generis protection of gene sequences?
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 06 Aug 1998 06:02:23 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C946EF.975FB3D2@ix.netcom.com> References: <6qageq$vtk$1@samsara0.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 47 Roger Schlafly wrote: > > Karsten M. Self wrote in message <35C89E80.1745356F@ix.netcom.com>... > >Even I will admit to being a bit mystified by the Manifesto. Having > >started with her earlier paper, "CONTU Revisited" (Duke Law Journal c. > >1984), which challenged the legal arguments for covering software under > >copyright, I'd gathered she generally felt that SW IP was headed for > >overprotection, and needs its own form of IP to correct this. The > >Manifesto makes the opposite case, a decade later -- SW IP is > >underprotected and needs its own form of IP to correct this. Me, I'm > >just sitting in the middle, confused. > > The argument for sui generis seems to depend on the claim that > software is qualitatively different from other technologies. And yes > it is, in some ways. But if this justifies sui gen, then it seems much > easier to make the case that other technologies are different, > and should have sui gen. Eg, genetic engineering, other biotech, > integrated circuits, drugs, etc. Are there also law professors making > a career out of arguing for sui generis protection of gene sequences? IC *got* sui generis protection with the SCPA (chip mask copyrighting statute, 17 U.S.C. 409). Most scholars, Samuelson included, argue that the was neither a "good" extension of copyright protection, nor necessary for protection of IC technology. I can't dig up a cite, but I believe she's written that the SCPA never resulted in a copyright infringement case. Note also that SCPA protection is for two years for unregistered works, ten for registered. This is far shorter than the life + 50 years or 75 years of protection granted authors and corporations respectively under ordinary copyright. I'm much less familiar with patent, but I believe biologicals have their own patent type. I'm not sure if this applies to bred plant species only or to biotechnology "inventions" in general. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:51pm up 53 days, 20:20, 2 users, load average: 1.06, 1.08, 1.03
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 05 Aug 1998 23:52:29 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35C952AD.F84D230A@ieee.org> References: <6qageq$vtk$1@samsara0.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 29 Roger Schlafly wrote: > The argument for sui generis seems to depend on the claim that > software is qualitatively different from other technologies. And yes > it is, in some ways. But if this justifies sui gen, then it seems much > easier to make the case that other technologies are different, > and should have sui gen. Eg, genetic engineering, other biotech, > integrated circuits, drugs, etc. Are there also law professors making > a career out of arguing for sui generis protection of gene sequences? And of course the example used for sui generis is semiconductor mask protection. It was obsolete almost from the date passed. Yes, there is sui generis protection available for integrated circuits. But it is today almost useless, if for no other reason that it is nearly impossible today to reconstruct a mask from an IC, esp. at the higher densities. Partly, this is because the etching wavelength is the same order of magnitude as the feature size. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 07 Aug 1998 18:45:18 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CB4B3E.36C1CF57@ix.netcom.com> References: <6qfg66$smo$1@camel29.mindspring.com> <6qf6an$cgv$1@csnews.cs.colorado.edu> <6qageq$vtk$1@samsara0.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 77 Roger Schlafly wrote: > The idea is that when copyright and patent laws were conceived eons > ago, no one could have anticipated changes in technology and > society that have revolutionized the nature of the products being > protected. Copyright protection is pretty much the same whether > the work is a novel, painting, movie, or computer program. > > P. Samuelson takes the position that software is radically different, > and requires special copyrights. She really wants much weaker > software copyrights because she is sympathetic to the "free > software" view of the world in which people who sell object code > only are evil. That's not quite my read. - Samuelson argues that SW is radically different from other copyrighted works. - She argues both that SW doesn't fit well within the copyright model, and that copyright offers little or no effective IP protection to SW. SW doesn't fit copyright because copyright is designed to control publication while disseminating knowledge. SW uses copyright to control appropriation while disseminating product. Fair Use exceptions have emerged as the vehicle under which reverse engineering can occur, but it's still a bit messy, in my book. IP provides no effective IP protection to SW because SW caries its IP "on its face" -- once reverse engineering has occured, the whole idea is presented, and the idea is not protected by copyright, only the expression of the idea. - She argues that patent doesn't work well either for a number of reasons, including that it's too restrictive (17 years is for f------ ever in SW), too expensive, too slow (2-3 years for approval), and too hard to approve and ensure against infringement based on prior art and existing patents. Search mechanisms for both are apparently atrocious. - Her latest work on the subject, "A Manifesto Concerning the Legal Protection of Computer Programs", 94 Columbia Law Review p 2308 (1994), argues that SW IP goes through periods of both over and under protection, based on copyright and patent, and that it really wants its own protection. The "Manifesto" reads to me as much more strong IP than her earlier "CONTU Revisited" (Duke L.J. 1984) which reviewed the original SW copyright act and history. Though Samuelson has mentioned freeware and shareware (see Manifesto, p 2377), I haven't seen an unambiguous statement concerning her feelings on the subject. Her appearance on the OSS panel is very interesting for this reason. AFAIK, much of her recent work has concerned WIPO, the various White and Green papers, and 2B. I suspect these will be the substance of her remarks at the Open Source Open House, though I've suggested to her that she address the issues of copyright and patent as well. Given the entire forum is 90 minutes and there are some half-dozen panelists, I doubt she'll have time for in-depth coverage of one topic, let alone three. The Q&A should be interesting though. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 11:31am up 55 days, 9:00, 2 users, load average: 1.17, 1.24, 1.10
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 7 Aug 1998 12:44:00 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qflee$rni$1@camel29.mindspring.com> References: <35CB4B3E.36C1CF57@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 47 Karsten M. Self wrote in message <35CB4B3E.36C1CF57@ix.netcom.com>... > - Samuelson argues that SW is radically different from other >copyrighted works. > > - She argues both that SW doesn't fit well within the copyright model, >and that copyright offers little or no effective IP protection to SW. > >SW doesn't fit copyright because copyright is designed to control >publication while disseminating knowledge. SW uses copyright to control >appropriation while disseminating product. Fair Use exceptions have >emerged as the vehicle under which reverse engineering can occur, but >it's still a bit messy, in my book. And do movies, music records, and artwork fit copyright? This distinction seems bizarre to me. >IP provides no effective IP protection to SW because SW caries its IP >"on its face" -- once reverse engineering has occured, the whole idea is >presented, and the idea is not protected by copyright, only the >expression of the idea. Now this is really absurd. How does she think Microsoft and Oracle make their money? > - She argues that patent doesn't work well either for a number of >reasons, including that it's too restrictive (17 years is for f------ >ever in SW), too expensive, too slow (2-3 years for approval), and too >hard to approve and ensure against infringement based on prior art and >existing patents. Search mechanisms for both are apparently atrocious. A lot of other fields have similar complaints against patents. Nothing unique about SW here. > - Her latest work on the subject, "A Manifesto Concerning the Legal >Protection of Computer Programs", 94 Columbia Law Review p 2308 (1994), >argues that SW IP goes through periods of both over and under >protection, based on copyright and patent, and that it really wants its >own protection. The "Manifesto" reads to me as much more strong IP than >her earlier "CONTU Revisited" (Duke L.J. 1984) which reviewed the >original SW copyright act and history. Sounds like it would be more accurate to say that it is her own views which have oscillated.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 8 Aug 1998 02:04:32 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qh4bb$1vs$1@camel29.mindspring.com> References: <35CBF4CC.18894597@ix.netcom.com> <6qflee$rni$1@camel29.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 50 Karsten M. Self wrote in message <35CBF4CC.18894597@ix.netcom.com>... >None of these are utilitarian works, Samuelson's main argument. All >carry, or reveal immediately when played, viewed, watched, whatever, >their content. Publishers of records, producers of films or sculptors >of artwork don't seek to keep the buyer of a copy of the work from >examining it in complete detail. Software -- object code -- by >contrast, requires detailed examination and mechanical processing to >divulge its meaning. A sculptor doesn't necessarily reveal his techniques, nor is it obvious from the sculpture. Likewise for many other works. I find this distinction unpersuasive. >> >IP provides no effective IP protection to SW because SW caries its IP >> >"on its face" -- once reverse engineering has occured, the whole idea is >> >presented, and the idea is not protected by copyright, only the >> >expression of the idea. >> >> Now this is really absurd. How does she think Microsoft and >> Oracle make their money? > >Copyright protects against direct copying of software -- I can burn a >CD-ROM and sell it, but not legally. Copyright does not prevent me from >figuring out how a program works and utilizing the ideas in my own >creation. This takes time. You are not answering the question. If PS says that SW has no effective IP protection, then she is an idiot. The IP protection is strong enough for Microsoft and Oracle to make billions of dollars. >I said there was? No, I said that Samueson doesn't think patent does a >good job with software. Just because my grass is green doesn't mean >yours is or isn't. She is not a patent attorney, and is in over her head on this subject. It is useless to complain about SW patents when other patents have the same problems. > Software currently has far less protection under >court interpretation of copyright than it did in 1984. See Lotus v. >Borland, Sega v. Accolade, Atari v. Nintendo. It sounds like you have been listening to Greenberg. You and he are wrong about this. Those decisions did not reverse existing law. SW copyright protection is every bit as strong now as it was in 1984.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 08 Aug 1998 19:45:28 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CCAAD8.22B95A6A@ix.netcom.com> References: <6qh4bb$1vs$1@camel29.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 130 Roger Schlafly wrote: > > Karsten M. Self wrote in message <35CBF4CC.18894597@ix.netcom.com>... > >None of these are utilitarian works, Samuelson's main argument. All > >carry, or reveal immediately when played, viewed, watched, whatever, > >their content. Publishers of records, producers of films or sculptors > >of artwork don't seek to keep the buyer of a copy of the work from > >examining it in complete detail. Software -- object code -- by > >contrast, requires detailed examination and mechanical processing to > >divulge its meaning. > > A sculptor doesn't necessarily reveal his techniques, nor is it obvious > from the sculpture. Likewise for many other works. I find this > distinction unpersuasive. Nor does a book reveal the bookbinding techniques. The protection granted by copyright for a book, a sculture, a musical work, or an architectural design is for the *expression* of the work, not the construction of the work. A sculptor's copyright does not protect his techniques. An author's copyright does not protect her research methods. An architect's copyright protects neither her drafting methods nor construction techniques. Red herring. As I see it, most software produces a number of artifacts (I'm speaking of produced or derived objects, outside the scope of copyright): - Design documentation (schemas, notes) - Source code - Object code - Runtime instance -- interaction of OC with dynamic libraries, other environmental factors, runtime images in RAM, cache, VM, etc. - Runtime actions, data, text, displays, screens, audio, visual, or other outputs (will vary by type of program, some or all may not be applicable). - Latent outputs -- permanent data output, hardcopy, email, etc. The copyright dilemma (I'm not saying flaw, I'm not saying fatal error, I'm saying dilemma) is this: - It is the runtime actions of a program, and the latent outputs, which are the valuable attributes of a program. All else is overhead. - It is the source code which provides the ultimate "design document" of the program. This is pretty arguably a "literary work". However it is the object code which directly enables a runtime instance. The argument that object code is itself a literary work is weakened by the near total impossiblity to gain meaningful information by direct reading of the object code. Returning to the argument: So if "source code" is techniques, and "object code" is a "derived work" of source, if both are covered under copyright, and if object code is published and distributed, why should copyright protection cover anything other than the *expression* of technique under software. The law has held that it does not (Sega v. Accolade), and that reverse engineering for purposes of identifying methods and mechanisms. To restate: software carries its technological content near its face. This technology is readily discoverable. Copyright cannot legally provide a bar to discovering this content by 17 U.S.C. 102(b) (utilitarian exemption) and 107 (fair use). Much of the legal history is the story of copyright holders seeking strong IP protection against alleged infringers seeking week IP protection under copyright. The current status is that gross appropriation is considered infringing, but reverse engineering is allowed. > >> >IP provides no effective IP protection to SW because SW caries its IP > >> >"on its face" -- once reverse engineering has occured, the whole idea is > >> >presented, and the idea is not protected by copyright, only the > >> >expression of the idea. > >> > >> Now this is really absurd. How does she think Microsoft and > >> Oracle make their money? > > > >Copyright protects against direct copying of software -- I can burn a > >CD-ROM and sell it, but not legally. Copyright does not prevent me from > >figuring out how a program works and utilizing the ideas in my own > >creation. This takes time. > > You are not answering the question. If PS says that SW has no > effective IP protection, then she is an idiot. The IP protection is > strong enough for Microsoft and Oracle to make billions of dollars. Let me change history. I meant to write "Copyright provides no effective IP protection...CRYPHTML.HTM" This is true in law and in fact. The fact that the industry thrives despite this lack might be a good argument that the weak protections curretnly provided are sufficient. > >I said there was? No, I said that Samueson doesn't think patent does a > >good job with software. Just because my grass is green doesn't mean > >yours is or isn't. > > She is not a patent attorney, and is in over her head on this subject. > It is useless to complain about SW patents when other patents > have the same problems. The fact is that she thinks patent doesn't fit SW well. You can agree or disagree. You can say other areas of IP have similar problems. If the problem is alledged for SW, you can provide confirming or counter evidence to support her views, or evidence that she's unqualified to hold an informed opinion. I was simply correcting your gross misstatements of her views. > > Software currently has far less protection under > >court interpretation of copyright than it did in 1984. See Lotus v. > >Borland, Sega v. Accolade, Atari v. Nintendo. > > It sounds like you have been listening to Greenberg. You and he > are wrong about this. Those decisions did not reverse existing > law. SW copyright protection is every bit as strong now as it > was in 1984. Compare and contrast Lotus v. Borland and Lotus v. Paperback. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 12:11pm up 56 days, 9:40, 2 users, load average: 1.19, 1.18, 1.11
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 01:59:22 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CD027A.4240A826@ix.netcom.com> References: <6qijtg$vm0$1@camel25.mindspring.com> <35CCAAD8.22B95A6A@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 79 This is my final post in this thread. Roger Schlafly wrote: > > Karsten M. Self wrote in message <35CCAAD8.22B95A6A@ix.netcom.com>... > >Nor does a book reveal the bookbinding techniques. The protection > >granted by copyright for a book, a sculture, a musical work, or an > >architectural design is for the *expression* of the work, not the > >construction of the work. A sculptor's copyright does not protect his > >techniques. An author's copyright does not protect her research > >methods. An architect's copyright protects neither her drafting methods > >nor construction techniques. Red herring. > > Right. Same for software. What's your beef? If you want to review my previous arguments, which is where the beef is, then re-read the posts. Don't ask stupid questions. > >Let me change history. I meant to write "Copyright provides no > >effective IP protection...CRYPHTML.HTM" This is true in law and in fact. > > I've tried to be patient with you, but anyone who would say that > is just idiot. Have you ever heard of Bill Gates? He is America's > richest man. He got there using the effective IP protection that > he got from copyright law. Which would argue that existing IP protections, weak or strong, are sufficient to foster creation of an industry in which one man may amass a wealth of $50 billion. Bill got to where he is by several means. Marketing is a word I hear frequently. The IP-is-the-source-of-Bill's-wealth school has few adherants. > >> > Software currently has far less protection under > >> >court interpretation of copyright than it did in 1984. See Lotus v. > >> >Borland, Sega v. Accolade, Atari v. Nintendo. > >> > >> It sounds like you have been listening to Greenberg. You and he > >> are wrong about this. Those decisions did not reverse existing > >> law. SW copyright protection is every bit as strong now as it > >> was in 1984. > > > >Compare and contrast Lotus v. Borland and Lotus v. Paperback. > > Lotus won both in district court with a judge who tried to stake out > new law with his opinion. His novel interpretation of copyright > was never accepted and reversed on appeal. The main > difference is that Paperback settled the case before appealing. Lotus won in Paperback (the other side capitulated). Mid-late 1980's. Lotus lost in Borland, early 1990's. Claim was roughly the same -- different source code gave rise to similar programs (Paperback was a near total clone, Borland had a menu/function compatibility mode). Samuelson cites the Whelan v. Jaslow case as the high water of strong copyright SW IP protection. Lotus v. Borland, Sega v. Accolade, and CA v. Altai have significantly weakened the level of protection afforded by copyright. Borland said that program elements may be duplicated without infringement, Accolade that reverse engineering is allowable under Fair Use, and Altai that AFC was the means for seperating copyrightable expression from non-copyrightable ideas in a program. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 6:31pm up 56 days, 16:00, 3 users, load average: 2.06, 2.02, 2.00
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 14:24:01 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0908981424010001@tstpa1-61.gate.net> References: <35CD027A.4240A826@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 55 In article <35CD027A.4240A826@ix.netcom.com>, kmself@ix.netcom.com wrote: > Roger Schlafly wrote: > > >Let me change history. I meant to write "Copyright provides no > > >effective IP protection...CRYPHTML.HTM" This is true in law and in fact. > > > > I've tried to be patient with you, but anyone who would say that > > is just idiot. Have you ever heard of Bill Gates? He is America's > > richest man. He got there using the effective IP protection that > > he got from copyright law. Indeed, Copyright protection of the literal expression (meaning byte-for-byte copying) has been unchanged through the ages -- it is difficult to pirate Microsoft's works of authorship without committing Copyright infringement, and that hasn't changed substantially over the years. However, it is plain beyond cavil to any serious student of this area of law that the scope of non-literal infringement has diminished dramatically over the past twenty years. Indeed, it has diminished in some jurisdictions to practically nothing. (See the last three 11th Circuit opinions on the subject, adopting a "virtual identity" test for certain types of non-literal software infringement). Roger's patience is irrelevant. He is a foolish, boorish man who doesn't really know what to do but exercise gainsay to forward his particular ideologies as to what the law "should" be. Karsten accurately represents what most writers consider to be the state of the law, for the reasons and authority set forth in Karsten's postings (not responded to on the merits by Roger) and Roger's gainsay, however often he might repeat it, cannot change that fact. I have noted in Karsten's postings (I no longer read Roger's -- he is one of a select few whose signal-to-noise ratio is so low as to earn a spot on my bozo list), it appears Roger made a number of truthful and accurate, at times, salient points throughout this colloquy. This wasn't one of them. Readers looking for a credible gaff-o-meter can generally know when Roger is trolling by the fact that he (1) begins ad hominems and repeates them; and (2) stops actually arguing on the merits. Readers should simply ignore Mr. Schlafly's remarks in this regard. He simply doesn't have a clue what he is talking about. The contrary position is well-recognized by those who routinely deal in this arena or have educated themselves as to what actually is the law. A recent National Law Journal article discussing the ever-diminishing importance of copyrights as an arrow in the software IP quiver (for non-literal infringement) can be found at: http://www.ljextra.com/practice/computer/0420softpat.html -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 14:05:21 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0908981405210001@tstpa1-61.gate.net> References: <35CCAAD8.22B95A6A@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 31 In article <35CCAAD8.22B95A6A@ix.netcom.com>, kmself@ix.netcom.com wrote: > Roger Schlafly wrote: > > > Software currently has far less protection under > > >court interpretation of copyright than it did in 1984. See Lotus v. > > >Borland, Sega v. Accolade, Atari v. Nintendo. > > > > It sounds like you have been listening to Greenberg. You and he > > are wrong about this. Those decisions did not reverse existing > > law. SW copyright protection is every bit as strong now as it > > was in 1984. > > Compare and contrast Lotus v. Borland and Lotus v. Paperback. Gentle readers will notice the difference between the reasonable (albeit misguided but anxious to study and learn IMHO :-) ) poster, Mr. Self, who has produced now at least five distinct authorities, and the trolling demagogue, whose sole argument comprises an ad hominem attack and naked assertion of correctness. Roger has no education or credentials in copyright law to speak of, and by his remarks and comments in this newsgroup throughout the years, one can reasonably conclude his understanding of these areas of law is nominal to weak. In short, Roger can be relied to come up with whatever argument suits his current political views, regardless of what the law may be. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 08 Aug 1998 08:56:49 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0808980856490001@tstpa1-18.gate.net> References: <35CBF4CC.18894597@ix.netcom.com> <6qflee$rni$1@camel29.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 166 In article <35CBF4CC.18894597@ix.netcom.com>, kmself@ix.netcom.com wrote: > Roger Schlafly wrote: > > > > Karsten M. Self wrote in message <35CB4B3E.36C1CF57@ix.netcom.com>... > > > You'd made a statement on Samuelson's views. I disagreed, gave my take > on her position. Her position and the reasons for it, she'd have to > answer for. > > > > > - Samuelson argues that SW is radically different from other > > >copyrighted works. > > > > > > - She argues both that SW doesn't fit well within the copyright model, > > >and that copyright offers little or no effective IP protection to SW. > > > > > >SW doesn't fit copyright because copyright is designed to control > > >publication while disseminating knowledge. SW uses copyright to control > > >appropriation while disseminating product. Fair Use exceptions have > > >emerged as the vehicle under which reverse engineering can occur, but > > >it's still a bit messy, in my book. > > > > And do movies, music records, and artwork fit copyright? > > This distinction seems bizarre to me. > > None of these are utilitarian works, Samuelson's main argument. Define "utilitarian." Does it extend to factual accounts and non-fiction? Are my computer games "utilitarian?" Here is where Paula's arguments begin to fall on their own weight. [Be prepared for a discussion of architectural works.] > All > carry, or reveal immediately when played, viewed, watched, whatever, > their content. Publishers of records, producers of films or sculptors > of artwork don't seek to keep the buyer of a copy of the work from > examining it in complete detail. Software -- object code -- by > contrast, requires detailed examination and mechanical processing to > divulge its meaning. That's, at most, a distinction without a difference. Many works are perceived not by the expression directly, but by the "execution" of the expression. Records and tape recordings, written music, written dance recordations, scripts, screenplays. Noone purchasing and using software CARES about the particular expressions of the mechanical object code/binary format for recording the record/use of notation to relate music or dance or theatrical and stage dirctions -- what they enjoy is the execution of those things. > > >IP provides no effective IP protection to SW because SW caries its IP > > >"on its face" -- once reverse engineering has occured, the whole idea is > > >presented, and the idea is not protected by copyright, only the > > >expression of the idea. > > > > Now this is really absurd. How does she think Microsoft and > > Oracle make their money? > > Copyright protects against direct copying of software -- I can burn a > CD-ROM and sell it, but not legally. Copyright does not prevent me from > figuring out how a program works and utilizing the ideas in my own > creation. This takes time. This is nonresponsive to the poster's point, which is that IP, particularly copyright, provides very effective protection indeed for the copyright owner's expression. Otherwise, Microsoft would not be as financially well-endowed as many nations. > > > - She argues that patent doesn't work well either for a number of > > >reasons, including that it's too restrictive (17 years is for f------ > > >ever in SW), too expensive, too slow (2-3 years for approval), and too > > >hard to approve and ensure against infringement based on prior art and > > >existing patents. Search mechanisms for both are apparently atrocious. > > > > A lot of other fields have similar complaints against patents. Nothing > > unique about SW here. > > I said there was? No, I said that Samueson doesn't think patent does a > good job with software. Just because my grass is green doesn't mean > yours is or isn't. Right, but its a valid point anyhow. The speed of the system and its length of term is the same for every art group -- yet patents work great with the others. Software needs first to be distinguished from those other groups before the argument can be meaningful. Again, we need to consider whether the argument being made is: (1) patents are bad; (2) software patents are bad; or (3) bad software patents are bad. If this is a (1) argument, its fairly laughable because the patent system works just great and demonstrably so. If this is a (2) argument, a huge jump was taken without explanation -- why are these issues unique o software? > > > - Her latest work on the subject, "A Manifesto Concerning the Legal > > >Protection of Computer Programs", 94 Columbia Law Review p 2308 (1994), > > >argues that SW IP goes through periods of both over and under > > >protection, based on copyright and patent, and that it really wants its > > >own protection. The "Manifesto" reads to me as much more strong IP than > > >her earlier "CONTU Revisited" (Duke L.J. 1984) which reviewed the > > >original SW copyright act and history. > > > > Sounds like it would be more accurate to say that it is her own views > > which have oscillated. > > Ask her. I'm a bit puzzled. Her second line is consistant with the > first, in context. Software currently has far less protection under > court interpretation of copyright than it did in 1984. See Lotus v. > Borland, Sega v. Accolade, Atari v. Nintendo. If what she is saying is that the scope of IP protection takes some time to adjust for emerging technology, and this means that the emerging technology requires sui generis protection, she's got a VERY weak argument. This oscillation of protection is true FOR EVERY NEW ART AREA AS A MATTER OF COURSE. IP Laws are designed to be broad and flexible -- to adapt to changes in the embodiments of their respective subject matter. And yes, this takes time. But the protection didn't realy change -- just the "betting odds" on how it would shake out. "Look and Feel" was never the law, just an optimistic sense as to where some overreadings of dicta in some New England opinions might lead. AFC was proposed long ago, but the basic principles of law have not changed. As the cases developed, we knew more clearly where the law was, and what were safe harbors not worth litigating in the future, but so what? And please note, the changes were not changes adapting to the unique nature of software, in my view, but rather changes RECOGNIZING HOW SOFTWARE WAS NOT DIFFERENT. AFC is simply an application of well-understood case law dealing with movies and plays to software, not some change in the law to accomodate the differences between software and all other works. I believe the present cases are actually settling into the idea that software really ISN'T all that different from other subject matter (for example as the "look and feel" approach would have required; nothign else is protected that way), not that it is fundamentally different. Moreover, why change NOW? What makes us think that we have a comprehension today of this area of law that justifies making a change -- when market conditions and technologies are just as likely to be different at tht time the bill is passed (just as happened in seminconductor masks)? Adding a new body of law simply makes it more expensive to get relief, and will require yet another two decades before there is any certainty as to what the statutes would mean. Having warred out the meanings of new statutory langauge in the face of no decided case law, trust me, new law, however clearly written will cost MILLIONS in fees before it is "sorted." I believe that the idea of sui generis protection is by itself very dangerous, even if the law is better than the status quo in theory. Without getting to the merits, what of the chaos and uncertainty that will ensue? Yes, this is a highly conservative position, but after studying Copyright Law since the 70's and seeing it evolve, I wouldn't want to give up the certainty we now have as to how to govern our conduct for anything. Paula wants to make a change, but she doesn't really say why change is necessary. She observes the fit between patents, copyrights and software isn't perfect. True, but when is the "fit' perfect? The question is whether it is doing its job. I don't see the schrapnel falling that the critics claimed would happen -- none of it. I do, however, see a lot of good arising from software IP. It would take a compelling argument, not a whine about aesthetic objections or a laundry list of relatively insignificant difference, to lead me to think new legislation is called for or justified. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 08 Aug 1998 20:23:57 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CCB3DD.9F1EB9BE@ix.netcom.com> References: <werdna-0808980856490001@tstpa1-18.gate.net> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 191 Andrew C. Greenberg wrote: Let me start at the end: > If what she is saying is that the scope of IP protection takes some time > to adjust for emerging technology, and this means that the emerging > technology requires sui generis protection, she's got a VERY weak > argument. This oscillation of protection is true FOR EVERY NEW ART AREA > AS A MATTER OF COURSE. I'm in general agreement with this argument. I may differ slightly in degree, but I am not convinced that a new area of law must be carved out for software vis-a-vis copyright. If anything, the traditional area of copyright seems to be following software into the electronic age. The current legislation is largely aimed at this (mis-aimed, in my book, but...). > I believe that the idea of sui generis protection is by itself very > dangerous, even if the law is better than the status quo in theory. > Without getting to the merits, what of the chaos and uncertainty that will > ensue? Yes, this is a highly conservative position, but after studying > Copyright Law since the 70's and seeing it evolve, I wouldn't want to give > up the certainty we now have as to how to govern our conduct for anything. Don't rock the boat? There are some merits, but I'd be loathe to promote this as my primary objection to manifestly bad law. Say, civil rights, women's rights reforms? I could see phase-in periods for new law to allow for orderly transition, but to say "we can't do that, it would be better to be there but it might hurt to get there" is weak. Say a 5-10 year period of transition. > Paula wants to make a change, but she doesn't really say why change is > necessary. She observes the fit between patents, copyrights and software > isn't perfect. True, but when is the "fit' perfect? The question is > whether it is doing its job. I don't see the schrapnel falling that the > critics claimed would happen -- none of it. I do, however, see a lot of > good arising from software IP. It would take a compelling argument, not a > whine about aesthetic objections or a laundry list of relatively > insignificant difference, to lead me to think new legislation is called > for or justified. I still see some rough edges, particularly in the object code as copyrighted debate, infringing RAM copies (effects much more than software, see above on traditional areas of copyright). SW licensing and EULAs have their warts. Patent takes too long to get, lasts too long when got, isn't checked sufficiently when registerd, and is hard to challenge and unregister. Industrial damage as a result? Not sure. > In article <35CBF4CC.18894597@ix.netcom.com>, kmself@ix.netcom.com wrote: > > > Roger Schlafly wrote: > > > > > > Karsten M. Self wrote in message <35CB4B3E.36C1CF57@ix.netcom.com>... > > > >SW doesn't fit copyright because copyright is designed to control > > > >publication while disseminating knowledge. SW uses copyright to control > > > >appropriation while disseminating product. Fair Use exceptions have > > > >emerged as the vehicle under which reverse engineering can occur, but > > > >it's still a bit messy, in my book. > > > > > > And do movies, music records, and artwork fit copyright? > > > This distinction seems bizarre to me. > > > > None of these are utilitarian works, Samuelson's main argument. > > Define "utilitarian." Does it extend to factual accounts and > non-fiction? Are my computer games "utilitarian?" Here is where Paula's > arguments begin to fall on their own weight. [Be prepared for a > discussion of architectural works.] How about: utilitarian: (3a) of, relating to, or aiming at utility utility: (1) fitness for some purpose or worth to some end. (2) Something useful or designed for use. [Webster's Ninth Collegiate Dictionary] A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article". "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. [17 U.S.C. 101] The three paragraphs from 17 U.S.C. 101 have long bothered me. They don't seem to fit together. Note that the pictoral, graphic, and sculptural works definition excludes computer programs, independently defined. It's the spirit, not the letter, I'm emphasizing. I don't understand your question WRT factual or fictional accounts. If you are talking about works about factual or fictional accounts, I would say that there may be some utility in the information, but that utility is not protected by copyright -- merely the expression of the fictional/factual account. Characters, situations, and themes are copyrightable, under the courts. I would deem your games utilitarian insofar as they are comprised of utilitarian interactions and modifications of technological artifacts -- computer software and hardware. I'll counter: what is your prespective of the sale of a game? Is the customer buying the program which makes the game possible, or are they buying the instantiation created when the program is run? Which of these -- code or game -- would you rather have protected on the market? > > All > > carry, or reveal immediately when played, viewed, watched, whatever, > > their content. Publishers of records, producers of films or sculptors > > of artwork don't seek to keep the buyer of a copy of the work from > > examining it in complete detail. Software -- object code -- by > > contrast, requires detailed examination and mechanical processing to > > divulge its meaning. > > That's, at most, a distinction without a difference. Many works are > perceived not by the expression directly, but by the "execution" of the > expression. Records and tape recordings, written music, written dance > recordations, scripts, screenplays. Noone purchasing and using software > CARES about the particular expressions of the mechanical object > code/binary format for recording the record/use of notation to relate > music or dance or theatrical and stage dirctions -- what they enjoy is the > execution of those things. ....the hackers do. I'm not buying the instantiation of the program, I'm buying the object code which makes the instantiation possible. See my response to Roger for more discussion. Audio and visual recordings are different in that the information provided is not interpreted "to bring about a certain result" -- it's simply played back directly, with a very direct, one-to-one mapping between recorded data and revealed information. Note again that this distinction is lost with more complex forms of recordings such as multimedia and interactive books. Again, I see non-SW copyright issues converging on the concerns of SW. > This is nonresponsive to the poster's point, which is that IP, > particularly copyright, provides very effective protection indeed for the > copyright owner's expression. Otherwise, Microsoft would not be as > financially well-endowed as many nations. It was you yourself who has pointed out to me several times that copyright provides *no* protection of the ideas embodied in software. I answered this in response to Roger. Suggest that IP is at least sufficiently strong if the industry is thriving as much as it is. > Andy Greenberg -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 12:41pm up 56 days, 10:10, 2 users, load average: 1.26, 1.28, 1.18
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 14:00:50 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0908981400500001@tstpa1-61.gate.net> References: <35cc6c9f.978749@news.ucla.edu> <werdna-0808980856490001@tstpa1-18.gate.net> Newsgroups: misc.int-property,misc.legal.computing Lines: 33 In article <35cc6c9f.978749@news.ucla.edu>, bstock@ucla.edu (Bob Stock) wrote: > This is true, but it doesn't go far enough. Samuelson's point is that > that you can have execution of programs with different "expression," > but which both produce identical behavior. You can't do that with > musical or textual symbols. That's nonsense, of course. Different programs (modulo comments that do not compile to code or mechanical substitutions of names) typically have different executions. Sometimes they make a difference, and sometimes they don't. But it is the same with music, drama and dance. What is the difference between (Brief Pause) and (Beat) in a script? Between piano and pianissimo? Between writing a repeat using repeat symbols, or a D.S. with Coda, and rewriting a phrase out entirely? Between different phrasing notations, between different barrings? About 3,000,000 different digital representations of the same musical performance? About 3,000,000 different mixes of the same musical performance? Different expressions can yield, at an appropriate level of abstractions, dramatically similar works, and different expressions, at an appropriate level of abstraction can yield "clearly" different works. And besides, Bob, what's your point? Why does the fact that two different "expressions" yield an identical "behavior" (presumably defined at the appropriate level of abstraction) have to do with the propriety or scope of I.P. protection? -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 5 Aug 1998 14:24:06 -0500 From: peltz@jaka.ece.uiuc.edu (Steve Peltz) Message-ID: <6qabgm$1cp$1@jaka.ece.uiuc.edu> References: <35C89C0D.479E1D47@ix.netcom.com> <6q9nrc$jj2@bourbon.cs.umd.edu> <6q8nc2$8n8$1@camel25.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 56 In article <35C89C0D.479E1D47@ix.netcom.com>, Karsten M. Self <kmself@ix.netcom.com> wrote: >Name three SW patents, including patent number, which you feel are >unreasonable. (XOR and Pantone have been discussed). The Wang patent. The backing-store patent (I "invented" it myself shortly after finding out there WERE graphical windowing systems (that didn't use it, due to the high price of memory at the time) - so I feel I can honestly assert that it was obvious). Using a character ROM on a glass TTY. Two I've been involved in were a DEC patent on "ring buffers" and a patent on a bingo game. The DEC patent is 4,449,182, issued May 15, 1984, INTERFACE BETWEEN A PAIR OF PROCESSORS SUCH AS HOST AND PERIPHERAL-CONTROLLING PROCESSORS IN DATA PROCESSING SYSTEMS. I'll have to go find the bingo patent number (I just re-found the copy of the deposition; I'm pretty sure the patent number is in there). As far as I know, both patents are still in force, although successful defenses have been raised against them (i.e. cases were settled out of court). Someone called me a few months ago about the bingo patent, so I'm pretty sure it is still going strong. Both had relevant prior art presented; in the bingo case, one ruling by the judge was that since the patented game used distributed processing (the user terminal did the logic to determine whether a BINGO had been scored), and the prior art version was implemented on a single mainframe (even though, internally, the game was implemented as separate processes communicating through a "communications means", in essentially the exact same way as the patent described, regardless of whether that was through shared memory buffers or a network), and didn't automatically call a BINGO (intentionally - the whole point was to make the PLAYER notice it and press a key; at which point the program would verify if it was or not). The DEC patent was pretty much blown out of the water. We were using the same method, in a publically used system, well before the patent. To top it off, we still had on-line discussions of the changes that were made and why, which matched pretty closely the advantages claimed in the patent. Yet the patent is still in force as far as I know (and I think DEC still claims they've never lost a patent case). Regardless of prior art, I would claim that BOTH patents were "obvious" (given the current state of the art at the time), almost trivial in fact, and not worthy of patent protection AND were being abused (the DEC case was using it as a protection against being able to build compatible peripherals, as the OS used that method for communicating with external devices). Actually, the bingo patent was OK on the face of it - it is only when it is interpreted as a software patent that it became a problem. It had a pretty clever method of using a physical game board with the layout of that board encoded into edge contacts to let the computer determine when a BINGO could be called. If it stuck with that aspect only, I wouldn't have a problem with it.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 06 Aug 1998 22:17:02 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0608982217020001@tstpa1-110.gate.net> References: <6qci3q$mmh$1@nnrp1.dejanews.com> <35C9576B.7CC3675A@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 27 In article <6qci3q$mmh$1@nnrp1.dejanews.com>, johnny_squire@hotmail.com wrote: > 1. A patent monopoly is given in exchange for a valuable disclosure to the > public. > 2. For a disclosure to be valuable, the public must learn from it. > 3. The public learns nothing from software patent disclosures (i.e. name three > programmers who ever learned anything by reading it in a patent). > Therefore a patent monopoly is inappropriate in exchange for software patent > disclosures. Big leap there. If the disclosure is directed to an enabling disclosure of a new, useful and unobvious subject matter, then proposition 3 is false. Accordingly, the syllogism fails for valid patents. Of course, propositions 1 and 2 are overblown generalizations, neither true nor false. A disclosure needn't be valuable to justify a patent, merely containing an enabling disclosure of a new, useful and unobvious. Proposition 2 requires some definitions before it can be analyzed. Even in view of those problems, however, of course the leap to the conclusion defies logic. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 13:46:01 GMT From: johnny_squire@hotmail.com Message-ID: <6qmtip$151$1@nnrp1.dejanews.com> References: <werdna-0608982217020001@tstpa1-110.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 20 In article <werdna-0608982217020001@tstpa1-110.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > If the disclosure is directed to an enabling disclosure of a new, useful > and unobvious subject matter, then proposition 3 is false. As ever, you've merely regurgitated the current practice of the profession. It's a question of fact, not law, whether a given legally enabling disclosure has actually taught anything to anyone. > A disclosure needn't be valuable to justify a patent, > merely containing an enabling disclosure of a new, useful and unobvious. That's the current state of the practice. Is it right, good or constitutionally justified? No. JS -----== Posted via Deja News, The Leader in Internet Discussion ==----- http://www.dejanews.com/rg_mkgrp.xp Create Your Own Free Member Forum
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 18:34:37 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CF3D3D.B21C8DF9@ix.netcom.com> References: <6qmtip$151$1@nnrp1.dejanews.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 johnny_squire@hotmail.com wrote: > > In article <werdna-0608982217020001@tstpa1-110.gate.net>, > werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > > > If the disclosure is directed to an enabling disclosure of a new, useful > > and unobvious subject matter, then proposition 3 is false. > > As ever, you've merely regurgitated the current practice of the profession. > It's a question of fact, not law, whether a given legally enabling > disclosure has actually taught anything to anyone. If the provision of IP protection by patent allows the inventor to publicize or describe his invention, then patent is promoting the advancement of knowledge. We don't need to show that patent claims are being read by other inventors (and they are), but that a patent claim provides security for the inventor to discuss his own invention without fear of losing rights to the idea. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 11:31am up 58 days, 9:00, 2 users, load average: 1.10, 1.20, 1.20
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 22:13:49 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1008982213490001@tstpa1-41.gate.net> References: <35CF3D3D.B21C8DF9@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 23 johnny_squire@hotmail.com wrote: > > In article <werdna-0608982217020001@tstpa1-110.gate.net>, > werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > > > If the disclosure is directed to an enabling disclosure of a new, useful > > and unobvious subject matter, then proposition 3 is false. > > As ever, you've merely regurgitated the current practice of the profession. > It's a question of fact, not law, whether a given legally enabling > disclosure has actually taught anything to anyone. I dissent. It's a question of fact whether a patent discloses new, useful and unobvious subject matter. If that is true, then it is apparent it must teach SOMETHING, since the subject matter is new, useful and unobvious as a matter of fact. If that is false, then the patent is invalid. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 07:00:29 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D19FFD.25F5FA51@ieee.org> References: <6qpiro$4jh$1@nnrp1.dejanews.com> <werdna-1008982213490001@tstpa1-41.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 48 johnny_squire@hotmail.com wrote: > The difference here, and the thing I'm trying to point out, is that a patent > may well be CAPABLE of teaching and _in fact_ teach nothing. Patent validity > (capability) is a legal question. Whether any one human has learned from a > given patent is a factual question. The latter SHOULD be the question that > determines whether the patent system serves it's constitutional mandate. But the proper question is not whether a given patent teaches, or really whether a given technology teaches, but rather whether the system as a whole teaches. > I'm certain that whatever actual teaching, if any, software patents have done > is an insufficient contribution to society to justify the monopoly granted. First, you suggest that looking at the patent system on a technology by technology basis makes sense. It really doesn't. The patent law is written very broadly. It does not say that it covers everthing except these five technologies just because the tradeoff between disclosure and protection didn't work out positively for these technologies. Rather, pretty much all technologies are thrown in together when determining whether or not the beneifits of the patent system outweigh the costs. Secondly, we are coming out of an era where really the only way that software technology was taught was in printed publications. There was not any great wealth of patent information on software until very recently. But this was because for a long time it was difficult to get software patents. Plus, even during that time, many of the software patents were disguised as something else. This of course has changed. An experienced software patent practioner can now overcome the nonstatutory problems of patenting software on a fairly consistent basis. As Greg A. in his Patent News statistice regularly points out, the number of software patents is rapidly increasing. We can expect that more and more of the prior art will be found, and taught in the patent data base. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 08:18:48 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D303D8.4CDEEE48@ieee.org> References: <6qsjs7$f6$1@nnrp1.dejanews.com> <35D19FFD.25F5FA51@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 36 johnny_squire@hotmail.com wrote: > > First, you suggest that looking at the patent system on a > > technology by technology basis makes sense. It really doesn't. > > I guess I should be flattered, but it's Prof. Samuelson's suggestion, not > mine. FWIW, I think firmware embodiements of mathematical algorithms should > be nonstatutory too, so it isn't a technology by technology thing - its a 35 > USC 101 thing. Well, at least you are consistent. However, both are for the most part now patentable. Allapat basically said that a programmed general purpose computer becomes a special purpose computer, which is a machine under section 101. Note BTW that software per se continues to not be patentable (except possibly in a method claim). Rather, software in connection with some hardware is what is patentable. That connection may be loading it in RAM (a machine), or written to a floppy/CD (article of manufacture). As for Prof. Sanuelson's position. First, as far as I am aware, it doesn't have any real legal basis. Secondly, she is not, and never has been either a programmer (her husband is, or rather was) or a patent attorney. And more importantly, I will suggest here that most of her observations were made at an earlier time, when there was much less software patent prior art in existence, and what there was was often hidden as electronics. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 01:05:58 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6r0r00$o98$1@camel25.mindspring.com> References: <6qvhun$qjf$1@nnrp1.dejanews.com> <35D303D8.4CDEEE48@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 johnny_squire@hotmail.com wrote in message <6qvhun$qjf$1@nnrp1.dejanews.com>... >Somewhere a bunch of posts back, this thread started as a discussion of >(Samuelson's) sui generis protection v. patents for software. "Real legal >basis" (beyond the constitution) isn't at issue. I know the current state of >the law, and appreciate the patient reiterations by the patent professionals, >but aren't you guys (Hayden, Greenberg, Aquilla, others?) willing to discuss >whether something better that what we have is possible? Sure, something better is possible. I'd be all in favor of a sui generis software protection if I thought there was any chance of something reasonable being passed and implemented. But the suggestions from law professors (like Samuelson) is so silly, impractical, and out of touch with reality that it is laughable. And the stuff out of Congress is worse. The House just passed HR 2281 which is a sui generis protection for databases, and for copy protection. The law is stupid, ineffective towards its stated goals, downright harmful in its side effects, unreasonably favorable to the special interests pushing the bill, and generally bad from beginning to end. Every change that Congress proposes for copyrights and patents is bad. I see no hope that Congress could produce a sui generis software protection system which is better than what we have.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 07:18:31 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980718310001@tstpa1-20.gate.net> References: <6qvhun$qjf$1@nnrp1.dejanews.com> <35D303D8.4CDEEE48@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 62 In article <6qvhun$qjf$1@nnrp1.dejanews.com>, johnny_squire@hotmail.com wrote: > In article <35D303D8.4CDEEE48@ieee.org>, > Bruce Hayden <bhayden@ieee.org> wrote: > > > Well, at least you are consistent. However, both are for the most > > part now patentable. > > > > [true, but irrelevant statement of current law snipped] > > > > As for Prof. Sanuelson's position. First, as far as I am aware, > > it doesn't have any real legal basis. > > Somewhere a bunch of posts back, this thread started as a discussion of > (Samuelson's) sui generis protection v. patents for software. "Real legal > basis" (beyond the constitution) isn't at issue. I think he was talking [in sections snipped] about her other legal arguments about the patent system as it presently stands. In particular, Ms. Samuelson still writes from about a decade-old perspective concerning Section 101. The law has evolved considerably (actually gone back to where it was before Benson), but Professor Samuelson seems to be focused still on legal arguments not really meaningful in patent practice. Agrees she advocates sui generis patent protection; agree that some of the discussion has been directed to that. Some of it hasn't. For example, hasn't Mr. Squire been making arguments in this very thread that the present regime isn't constitutional? > I know the current state of > the law, and appreciate the patient reiterations by the patent professionals, > but aren't you guys (Hayden, Greenberg, Aquilla, others?) willing to discuss > whether something better that what we have is possible? That's interesting. I know few practicing lawyers in this area who would make that claim, not from ignorance, but from the fact that the "state of the law" does not reduce to bright-line rules easily scryed from cases. And yes, we *ALL* consider whether something better is possible. However, this must begin with a full and fair analysis of what is wrong with the status quo; and a clear-minded recognition at what will likely happen if Congress ever decides to revisit the Patent Act in this regard. Current experiences in patent reform and the database legislation are, well, scary reminders of what sausage legislation can be. Additionally, changes to legislation for inventions rlated to software raise a host of serious consequenes and problems, not the lest of which is the decade of uncertainty as the new laws are construed by the courts. This is, I agree, a conservative position: don't fix it unless its broken AND you know the fix will be better, and the mechanics will cluefully apply the fix correctly. However, I think we can all agree that there is a great deal at stake. In this view, it seems to me responsible to assure that everyone is fully apprised about the current state of the law. In my eperience, most lay (and some lawyer) posters on the internet seem to be less than fully briefed in this arena. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 06:58:09 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980658090001@tstpa1-20.gate.net> References: <6quom3$lph$1@nnrp1.dejanews.com> <werdna-1208982256220001@tstpa2-80.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 52 In article <6quom3$lph$1@nnrp1.dejanews.com>, johnny_squire@hotmail.com wrote: > In article <werdna-1208982256220001@tstpa2-80.gate.net>, > werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > > > Doubtful distinction, IMHO. My Webster's Third New International (which I > > take it is an adequate representative of the English language) defines to > > "teach" to mean "to cause to know how to do something." > > > > Something that satisfies the stautory prerequisites for patentability > > clearly accomplishes this. To the extent it does not, it clearly does not > > satisfy the statutory prerequisites: > > Wrong. The statutory prerequisite is that the patent disclosure CONTAIN > disclosure sufficient to teach. Then we agree it teaches. > The constitutional prerequisite is that the > patent SHARE information in exchange for a monopoly. The law wrongly assumes > that people skilled in the art will read and learn from the patents. You won't find these words in the constitution. And if Johnny's sole point is that a book doesn't teach unless it is read, I really cannot quibble. My reply, however, is, "so, what?" Why wouldn't it teach anyone who reads? > > If a professor stands in front of an _empty_ room and lectures - there has > been no teaching, even if the lecture was brilliant and capable of > enlightening the masses. Teaching, by your definition above, requires that > someone learn. Software patents are like the lecture to an empty room - no > one hears what they have to say. Seriously, Johnny, what is your point? That because YOU don't read patents, the patent system is unconstitutional? Nonsense. It is certainly not true that NOBODY reads patents. Many people do. In fact, how many patents were cited in this very thread and the parallel threads as we are writing, with URL's directly to the IBM patent server? Anti-patent people are reading patents all the time (hoping to find another "bad software patent" to hype), and frequently publishing its text and text of its claims. I rest my case. To the extent Johnny Squire's now agrees that the patents do teach so long as they are read by persons, I believe they serve their public purpose. Even if it were true that the public chose not to read them -- it wouldn't be much of an argument that they were deficient. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 20:02:20 GMT From: johnny_squire@hotmail.com Message-ID: <6r254b$hfq$1@nnrp1.dejanews.com> References: <werdna-1408980658090001@tstpa1-20.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 In article <werdna-1408980658090001@tstpa1-20.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > Seriously, Johnny, what is your point? That because YOU don't read > patents, the patent system is unconstitutional? Nonsense. I do read patents, but I'm not a programmer anymore. Software patents today are problematic (not unconstitutional) because NOBODY OF ORDINARY SKILL IN THE ART reads them. Can you have three non-lawyer programmers step forward and claim to have learned something from a patent? I can't. I NEVER saw one when I made my living as a programmer. I certainly wasn't taught to use them as a resource in my Computer Science courses, nor in any of the developer training I attended. I believe that my fairlure to learn anything from patent disclosures as a programmer is very typical (the rule?) and would shut up if someone showed me otherwise. > It is certainly not true that NOBODY reads patents. Many people do. In > fact, how many patents were cited in this very thread and the parallel > threads as we are writing, with URL's directly to the IBM patent server? The patents quoted in this thread have been discussed only because non-lawyer programmers find them obvious or ridiculous, not because they have something to teach. JS -----== Posted via Deja News, The Leader in Internet Discussion ==----- http://www.dejanews.com/rg_mkgrp.xp Create Your Own Free Member Forum
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 17 Aug 1998 11:48:36 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6r9tp2$ius$1@camel25.mindspring.com> References: <6r9q59$3il$1@nnrp1.dejanews.com> <35D65EE8.67F4EFC2@ieee.org> <6r254b$hfq$1@nnrp1.dejanews.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 johnny_squire@hotmail.com wrote in message <6r9q59$3il$1@nnrp1.dejanews.com>... >The difference is that until recently, S/W was nonstatutory. That's where my >argument stops. > >If the little guys (or the anti-S/W-patent guys of whatever size) in the S/W >industry had their act together, they could get Congress to do as you >suggest. Heck, if doctors can make medical technique patents unenforcible >against them, maybe can programmers do something similar. After all the time >they've spent on Y2K, programmer immigration and Microsoft IE, Congress must >have a new appreciation for the industry... ;) That might be refreshing for Congress to at least look at the question. The situation we have now has been dictated not by Congress, not by the patent office, not by the supreme court, but by an inferior court in Washington which is fond of ignoring precedent and which is composed of judges who know nothing of software. Most of them don't even have a patent law background. The supreme court decision in Benson was not reversed in Diehr, and is supposed to still be good law. Yet the federal circuit ignores it.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 17 Aug 1998 20:32:28 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D8F5CC.936FAB76@ieee.org> References: <6r9tp2$ius$1@camel25.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 48 Roger Schlafly wrote: > That might be refreshing for Congress to at least look at the question. > The situation we have now has been dictated not by Congress, not > by the patent office, not by the supreme court, but by an inferior court > in Washington which is fond of ignoring precedent and which is > composed of judges who know nothing of software. Most of them > don't even have a patent law background. And you think that J. Douglas did in Benson? The Federal Circuit at least has some patent expertise. Congress and the Supreme Court have essentially none. Indeed, if you read the cases coming out of the Federal Circuit, it is clear that they know quite a bit more about patents than you do. As for understanding software, that is (IMHO) precisely why the trend has been towards patenting, and not aways from it. Do you really contend that J. Douglas in Benson understood the first thing about software? At least today, most judges, and invariably all of their secretaries and clerks know at least enough about software to run their own computers. It is doubtful that most of the Court in Benson had ever even seen a computer in person. > The supreme court decision in Benson was not reversed in Diehr, > and is supposed to still be good law. Yet the federal circuit ignores it. No they don't. However, they have narrowed it quite a bit. This is what I call wishful thinking law. You wish that software wasn't patentable, and thus it really isn't, despite the courts consistently deciding to the contrary. Reality Check. The Federal Circuit has significantly narrowed Benson, taking the lead of the Supreme Court in Diamond v. Diehr. That is the law. Software is patentable if properly claimed. Sorry. Arguing to the contrary, as you apparently are doing, is counter- productive. (Arguing that software isn't legally patentable is quite different from arguing that software shouldn't be patentable). -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 7 Aug 1998 11:01:24 +0500 From: cmikk@tig.oss.uswest.net (Chris Mikkelson) Message-ID: <35cb24d4.0@news2.uswest.net> References: <werdna-0608982229040001@tstpa1-110.gate.net> <35c8bd25.0@news2.uswest.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 32 In article <werdna-0608982229040001@tstpa1-110.gate.net>, Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: [Regarding two "impossible" compression patents] >I would be curious what language in the specifications of either patent >that Mr. Mikkelson feels is directed to an impossible invention. I do not >claim such language isn't present there, only that upon a cursory scan, I >did not find it. Jean-loup Gailly has done a more thorough examination than either of us. http://w3.teaser.fr/~jlgailly/05533051.html (it has a link to an analysis of the second patent, also) Mr. Gailly is the author of gzip, the GNU compression program. He discovered these two patents while verifying that gzip did not use any patented compression algorithms. While re-discovering J-l Gailly's page (I hadn't read it in a while), I found a link to the comp.compression FAQ. According to its section on compression patents, run-length encoding is patented! I would certainly have suspected that to fail the "not obvious" requirement. Supposedly these patents were granted in '86 and '89 [warning: this post is not y2k-compliant], and I have a hard time believing that there is no prior art. I was under the impression that the run-length encoding idea was "as old as the hills", so to speak. -- Chris Mikkelson | Economics is a zero-sum game. Anyone who says cmikk@uswest.net | otherwise is selling something.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 7 Aug 1998 17:05:27 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qg4ok$f5g$1@camel29.mindspring.com> References: <35cb726a.0@news2.uswest.net> <6qfqi6$l1t$1@jaka.ece.uiuc.edu> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 35 Chris Mikkelson wrote in message <35cb726a.0@news2.uswest.net>... >I think that the central problem with Software patents really *is* >the relative speed at which the computer industry moves. If you >have a software idea, generally you can have a saleable product >within a couple of months. Once you have the "prototype" (in the >more traditional sense, i.e. a first working example of the final >product), you have the product, and it costs next to nothing to duplicate >it. Thus, the profits roll in much faster. Dream on. Most significant new software products take 2+ years to develop, 6+ months to test, and millions of dollars to bring to market. >Compare this to a more traditional, physical widget of some kind. After >the invention, you must also manufacture a factory, to produce the items. >Then, you must pay for the materials which the item is made out of. The >manufacturing costs (the incremental cost-per-item) is much higher relative >to the price people will pay, so it may actually take 17 years for you >to make a decent profit. There are drugs and other products which have relatively low manufacturing costs. >PS: On a related note, just imagine that Dan Bricklin had patented the >spreadsheet. It was, I believe, a mostly original idea at the time. At >least original enough for the patent office to accept ;-). Actually, he could not have patented it because Pardo had already patented it. The patent's validity was upheld in court, but when the inventor sued Lotus, it was knocked out on a trivial technicality.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 07 Aug 1998 22:51:31 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0708982251310001@tstpa1-18.gate.net> References: <35cb726a.0@news2.uswest.net> <6qfqi6$l1t$1@jaka.ece.uiuc.edu> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 57 In article <35cb726a.0@news2.uswest.net>, cmikk@tig.oss.uswest.net (Chris Mikkelson) wrote: > In article <6qfqi6$l1t$1@jaka.ece.uiuc.edu>, > Steve Peltz <peltz@jaka.ece.uiuc.edu> wrote: > >I think the reasoning is that, although the algorithm itself isn't > >patentable, the application of the algorithm is (i.e. what is patented > >is the idea of using the topological sort as a method of determining > >the order for recalculating cells in a spreadsheet). > > > >Not that I think that's how it should work... > > I really have a difficult time seeing algorithms in anything other > than a mathematical way. Not a problem -- just don't sweat it. Mathematical or not, the APPLICATION of an algorithm to a particular patent, expressed as an apparatus, article of manufacture or method will be patentable. _See_ State Street Bank. > I think that the central problem with Software patents really *is* > the relative speed at which the computer industry moves. If you > have a software idea, generally you can have a saleable product > within a couple of months. Decades old notion. It takes way more than that much time to print T-shirts at today's vaporware rates. No serious software is developed in this timeframe. Prototypes are not meaningful "products" in the sense described. > PS: On a related note, just imagine that Dan Bricklin had patented the > spreadsheet. It was, I believe, a mostly original idea at the time. At > least original enough for the patent office to accept ;-). Actually, there were spreadsheet applications (both patent and software applications) well before Bricklin. However, it is amusing you should say this, as I just wrote a newsletter describing the State Street Bank case, beginning with a discussion of Bricklin & Frankston's consultation with their attorney just a few years before Diamond v. Diehr. > Remember when VisiCalc came out? I was alive, but don't remember. Remember > what the state-of-the-art computer was back then? The most advanced software? > > 17 years is just plain too long. Yes, I do remember when Visicalc came out. I remember the absolute thrill of being the author of the very first software product ever to beat it on the SoftTalk monthly sales list. But your conclusion is nonsense -- the notion of a spreadsheet in software is as viable today as it was then, in many ways moreso. The invention is as commercially important now as it was then. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 10 Aug 1998 15:05:47 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y6af5cwtbo.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 140 jsm@mindspring.cob writes: > Craig Burley (burley@tweedledumb.cygnus.com) wrote: > > "Roger Schlafly" <nospam.schlafly@cruzio.com> writes: > > > Most significant new software products take 2+ years to develop, > > > 6+ months to test, and millions of dollars to bring to market. > > > The 1998-08-10 Forbes article on free software seemed to suggest > > otherwise, especially about that last part. > > I want to agree with you, Craig, really I do, but I keep getting > stuck on the real value of all that volunteer programming talent > at (a conservative) $50/hr. In the original context -- software patents vis-a-vis the pace of the software industry -- do you think that value is pertinent? Put another way: if I plan to spend $2M to create a new, proprietary Fortran compiler, perhaps it can be argued that I need software patents to preserve my investment until I get significant ROI from sales of individual copies. I can allocate a suitable portion of that $2M up front to code reviews for patentable matter, hiring of attorneys, and so on. No problem. OTOH, if you claim that $2M is a reasonable approximation to what it took to create g77, a widely used free Fortran compiler -- or will take to create it, depending on how you define it as "finished" -- then I'd be happy to agree with you as far as *that* goes. However, you'd also have to show that it is about as easy to allocate a portion of that $2M for *real* up-front spending on lawyers, patent- application fees, and other legal mumbo-jumbo, which is doggone hard to do when that $2M is *not* real money -- just value imputed by you (and many others, of course) *after* the project is complete, or substantially so. If you can't do that, perhaps that suggests something important vis-a-vis whether the patent system is a help, or a hindrance, to software development in *general*, given that at least one major (and growing) methodology used is *hindered* by the patent system. I believe it *is* a hindrance, and an especially nasty one if it can't keep up with relatively minor, short-term changes (compared to other long-patentable fields) like the free-software movement upon which more and more businesses are coming to depend. So my next question would be: exactly what purpose would software patents serve that a free-software product like g77 would *need*? So far, my answer is: the only possible use is defense against large corporations already using software patents to prevent certain kinds of free software from competing with their proprietary products. That is, if software patents don't exist, or are sufficiently restricted so that general-purpose computing is rarely entangled within it, then there's no need for them in free-software products like g77. The original quote to which I responded seemed to be saying "no way the software industry goes too fast for the patent system, all the major packages take forever and tons of money to develop", and the Forbes article seems to say "not really" to at least some of those assumptions. If you want to *value* the efforts taken to *rapidly* develop free software at some dollar value, fine, but you might as well just say "well, instead of taking 10 programmers 2 years to create, it took 120 programmers 2 months to create, which amounts to the same amount of *overall* time". Would you then claim that the patent system is still sufficient to keep up with *that* pace, on the theory that man-hours are man-hours however they're implemented in "wall-clock time"? How far would you be willing to go down that road -- claim that a 10-year-average approval process is "okay" because, after all, it'd take one programmer *20* years to develop the average major application, so having the approval process take only "half the time" it takes for a typical major project to be brought to market, if done, *theoretically*, by only one programmer, does not constitute a hindrance regardless of how many programmers are actually thrown at the job and thus how little time it actually takes? In summary: the present patent system is entirely built around the concept of *up-front* development and related legal work, including the concomitant spending and, thus, allocations of cash. The burgeoning free-software movement is entirely built around the concept of spontaneous, often "bushy", generally unplanned, growth requiring little cash and thus little or no initial allocations. Therefore, software patents are unlikely to be anything but a substantial hindrance to the free-software development paradigm, as it's clear they're of no fundamental help. (Free software is inherently published, as source code, so any time taken to find patentable inventions in it is most efficiently used by simply publishing such things forthwith, rather than submitting them for a long, "secret" review by the PTO. Note: I believe some non-US PTO's don't keep them secret, but have lost track; these might pose somewhat lower hindrances to free-software development for that reason.) Of course, we (in the free-software community) have known that software patents pose a danger for *many* years. The one thing that might change this equation somewhat is if a bunch of really bright lawyers "convert" to a similar paradigm, a free-IP one, helping their "brothers-in-arms" in the free-software community by rapidly applying for relevant patents for use by that community and, at the same time, challenging software patents that are held by proprietors. That'd mitigate, somewhat, the up-front cash-spending needs, for lawyers anyway -- though us programmers don't have to spend thousands of dollars anytime we want to publish some new code the way lawyers do to file or challenge a patent, again illustrating the impediments the patent system places in the way of the coming Information Age. (As far as whether a lawyer might get the some "buzz" by successfully challenging a patent, taking on all costs himself and getting no rewards except pats on the back, as some of us programmers get when we find and fix a big bad bug in a popular application under similar risk/reward circumstances -- I can't speak to that, as I don't know enough lawyers.) For the most part, this is all an interesting theoretical exercise. At some point, there might occur some pretty serious examples of how much of an impediment software patents are to the entire industry. E.g. Microsoft might decide to attack Linux on patent-violation bases, or some such thing. This is one possible scenario that might bring about substantial industry-wide antagonism towards software- patent proprietors, just as the possibility of widespread Y2K outages worldwide might conceivably bring about substantial antagonism towards anyone who distributes software without source code for public review. Another summary: since the patent system is all about ensuring that inventions are published, it can offer *no* advantages to the free-software community, since that community *necessarily* publishes all of its inventions, in the form of source code available for public review. -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 22:47:20 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qolo6$2a$1@camel25.mindspring.com> References: <werdna-1008982237130001@tstpa1-41.gate.net> <y6af5cwtbo.fsf@tweedledumb.cygnus.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 22 Andrew C. Greenberg wrote in message ... >> E.g. Microsoft might decide to attack Linux on patent-violation >> bases, or some such thing. > >They might, they just might. So far, however, Microsoft has been the >world's leading VICTIM of software patents, being on the losing end of the >STAC lawsuit to the tune of $100M. There's no other meaningful litigation >in this arena. In other words, software patents have benefitted Davids >far more than Goliaths so far as support can be found in the public >record. This analysis is incorrect. First, Stac settled for an amount much less than $100M. Second, Microsoft lobbies in favor of strong software patent, and it isn't known for acting against its own self interest. Third, patent license negotiations are almost never on the public record. Fourth, software patents raise the barrier to entry in the software market, and that fact works to Microsoft's favor.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 11 Aug 1998 15:15:21 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y6hfzjl48l.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 529 werdna@nonspam-gate.net (Andrew C. Greenberg) writes: > > However, you'd also have to show that it is about as easy to allocate > > a portion of that $2M for *real* up-front spending on lawyers, patent- > > application fees, and other legal mumbo-jumbo, which is doggone > > hard to do when that $2M is *not* real money -- just value imputed > > by you (and many others, of course) *after* the project is complete, > > or substantially so. > > Nothing like $2M is ever necessary to acquire patent protection for an > invention. And if you are relying upon grant money from a University, > there is always that resource. If you are relying upon volunteer work for > the benefit of the public, you might seek a lawyer to work pro bono > publico (lawyerese for "for the benefit of the public") to help you > protect it. If you can't find someone to do it pro bono, that might > suggest something about the public benefit of the work. I'm sorry, but could you miss the point *more* than you do? The ORIGINAL QUOTE was about LARGE software projects, and was in response to the claim that the patent system might be a hindrance to software development. AFAIK, *each patent* costs $K to apply for, with no promise it'll get approved, so for even medium-scale, $200K development projects, the cost of patent applications needed to even *try* to provide a defense against litigation by other patent-holders can consist of well beyond 5% of the total cost, assuming that cost is *cash* (which is not the case for free software -- the cost there is, instead, value imputed to the labors of volunteers). You're just making the excuse that the free-software community can *theoretically* afford to fully engage the software-patent system so that you don't have to defend that system against quite- legitimate charges that it serves largely as a hindrance, not a help, to software development *in general*, and this will get *worse*, not better, as free-software development gains prominence, since such development *practically* cannot afford to "slow down" just to cope with software patents. Further, individuals like myself *cannot afford* to do our volunteer development under an ever-increasing threat of litigation over software patents. No amount of theoretical hand-waving will change this. Only the elimination of software patents can assure that it won't be a problem. The likely solution will be some middle ground, e.g. something like what Karsten talks about. The fact is, I very nearly stopped writing g77 because of the threat of *personal* exposure vis-a-vis software patents, and decided to plow ahead only because it seemed unlikely that a compiler for FORTRAN 77 would violate any important patents *or* that the Fortran community would tolerate a lawsuit against a volunteer writing code supportive of that community. I could *not* have gotten up-front funding to apply for software patents of my own, and even if I had, I couldn't have afforded to spend all the extra time to try and divine patentable material from the largish, but fairly mundane, code I was writing at the time -- code containing inventions that would be published *anyway*, and thus did not need the patent system to be "teased out" of my brain. More cutting-edge software products are starting to be written by free-software developers, and the only way software patents won't be purely a hindrance to these is if the computer industry as a whole refuses to sue, or threaten to sue, developers and distributors of free software for patent violation. However, this would require a change in behavior, since the industry has *already* so threatened, just as the Linux name was "tied up" in ludicrous litigation because some bozo decided he could trademark the name, even though on the *face* of it, he had no case. Linux "won", as it should have, of course, but it took time *and* money to bring about the obviously correct result. In the case of software patents, instead of missiles (as in trademarks), which are clearly visible as they approach and forthrightly dealt with, we have land mines, planted years earlier in the hopes of catching someone. The perceived value they're likely to have, especially among the "if-it's-legal-it- must-be-ethical" crowd that, so often, includes substantial numbers of lawyers, will not necessarily exclude free-software developers among their targets. As these mines begin detonating, people will take note and free-software development will slow down, with no benefit accruing to the industry as a whole, since all free-software development is published *anyway*. On the plus side, I thought this would have happened by now, but am unaware of any substantial increase in such cases. However, Netscape probably wasn't worried about anyone giving away free knock-offs of its products, until it started actually happening. > > If you can't do that, perhaps that suggests something important > > vis-a-vis whether the patent system is a help, or a hindrance, to > > software development in *general*, given that at least one major > > (and growing) methodology used is *hindered* by the patent system. > > I don't think I agree. Property rights in general make it difficult for > poor authors to write as much as they would like, instead needing to work > to feed and house themselves and their families; they make it difficult to > perform theatrical productsions, it being difficult to find resources such > as a theatre and advertising; they make it difficult to make movies, yet > propery generally works well for the benefit of society. Some things cost > money to do, others do not. If what you are saying is that it is > difficult to write free software for free without having the benefit of > legal counsel (or a computer, or electricity), I agree. Does that mean > the patent system is broken, or that "the software industry" is hindered > thereby? I don't think so, any more than the complaint that you need to > have a computer to write software makes the personal property system a > hindrance. Still others can get jobs doing software for the same reason > the freebies are having problems. Again, you're missing the point. Nobody in this sub-thread was talking about the validity of IP (or property rights) in general. The assertion was that software patents have *too high* a cost. The response was, essentially, "not compared to large software projects, which take many programmers 2+ years and $2M", at which I chimed in about the pertinence of that to the entire industry given the rise of free-software development (for which *imputed* value clearly has nowhere near the usefulness of *actual cash* when it comes to funding patent applications and legal defenses). Is it totally unacceptable to you to discuss whether software patents have *too high* a cost, and perhaps should be special-cased, if not eliminated, within the patent system, *without* taking an all-or- nothing stance with regard to all IP, or even all property rights?? If so, please leave the discussion, as you can't handle it. We're not discussing an all-or-nothing choice; we're discussing the quite-legitimate question of whether software patents are more trouble than they're worth. That's exactly what citizens like us are *supposed* to be doing, right? > > I believe it *is* a hindrance, and an especially nasty one if it > > can't keep up with relatively minor, short-term changes (compared > > to other long-patentable fields) like the free-software movement > > upon which more and more businesses are coming to depend. > > It hasn't hindered anything meaningfully yet, and indications are that it > has helped quite a bit. Once again, this seems to be a "Patents are bad" > argument, without any particular reason to distinguish software patents > from other works and other industries and other forms of IP. Software patents have *destroyed* businesses. The "Bingo" patent alone was fought, successfully, *only* because the owner of the business that was destroyed decided to fight it *on principle*, even knowing his business was already dead. It did not matter that the patent and/or the patent owner overreached. The beauracracy's response *necessarily* included the total destruction of a viable business that involved *proprietary* software, because that's basically how the system works -- this "David" fought, "won", and lost his life, while Goliath got a dent in the metal helmet given to him free by the government. I have yet to see *any* substantial evidence that software patents have "helped" much of anything, in terms of bringing products to market. In terms of publishing software algorithms that would otherwise not be published, it might have helped, but that's supposedly not "allowed". In terms of publishing information on the areas in which algorithms can be applied, I've not seen any evidence that it has helped at all, and it *will* significantly hurt the entire industry within ten years, *noticably*, as software itself makes choices regarding what algorithms to apply to new problem domains without the awareness of the humans posing the problems. As far as software patents vs. other types: the distinctions are sufficiently obvious for anyone wishing to objectively consider them. Very few people have had trouble with this, although a few who *discuss* "software patents" have insisted there are no real differences. The LPF and others have published definitions that, as with all legal definitions, are not precise, but sufficiently so that they agree on the categorization of the bulk of patents. > > So my next question would be: exactly what purpose would software > > patents serve that a free-software product like g77 would *need*? > > > > So far, my answer is: the only possible use is defense against > > large corporations already using software patents to prevent certain > > kinds of free software from competing with their proprietary products. > > This isn't enough? In other words, you are saying "software patents are *great* for the free-software community -- without them, how would that community defend itself against litigation based entirely on software patents?" I think others, if not you, will see how ludicrous your circular argument is. *We* don't need software patents. The *world* does not need software patents or, if it might, it does not need them to apply to any free-software products. IMO, the solution is simple: pass laws that rule out *all* software licensed under conditions that meet Open Source (TM) (or similar) guidelines, such as the GPL, as targets of any software-patent-related litigation. In other words, since an entire subclass of a functional industry *always* publishes its inventions, don't allow it to be threatened by a beauracracy that exists solely to ensure inventions are being published. (In reality, the beauracracy exists to provide instant riches for litigous people and generous fees for IP lawyers, which is why software patents will be defended to their death, if necessary. Of course, neither of these things truly benefits society.) > > That is, if software patents don't exist, or are sufficiently > > restricted so that general-purpose computing is rarely entangled > > within it, then there's no need for them in free-software products > > like g77. > > True. Others of us would like there to be products besides g77. Name a *single* Fortran compilation system that could not be, or have been, released if software patents did not exist, and back up your assertions with evidence. > > Therefore, software patents are unlikely to be anything but a > > substantial hindrance to the free-software development paradigm, > > as it's clear they're of no fundamental help. > > Now, we move away from the notion of the "software industry," to a pure > "free-software deelopment paradigm." No, we do *not* "move away" from that. That's where I *started* this subthread, based on a quote that suggested it did not matter how slow the software-patent bureacracy was, since So Much Money And Time was needed to develop software. It's the free-software community that is *shaking up* the status quo, such as readers of Forbes, by *proving* that software need not take So Much Money And Time to develop. Those of you who are in love with software patents don't care, because you're happier if software development is slowed down and made more expensive, as long as some of you can skim off the top. *All* beauracracies are loved and defended, fundamentally, for this reason. I think the larger *user* community, desperate for rapidly developed, high-quality software, will have a *different* opinion, and needs to be informed about the issues. > Lawyers *DO* enjoy legal work, or they should get out of it. I for one > LOVE what I do (just as I loved what I did when I was writing and > publishing computer games). The trick is not to hope someone would enjoy > that, but to get some lawyers to start believing your religious views > about the public benefits of the particular free software you want to have > supported. Pro bono legal work happens all the time -- I do a great deal > of it myself. I said *nothing* about religion. The entire industry is coming more and more to depend upon the rapid, insubstantially funded free-software development efforts. That a few of you get rich from software patents, thus causing you to support them no matter how much they slow down software development, will not prevent the *rest* of us from pointing out that that's exactly what you're doing. When trolls take control of a bridge and charge tolls, most people accept them at first, because they're usually cheap. As the tolls rise, people usually continue to accept *that*, because the rise usually means the trolls have correctly recognized the increased need for the bridge. At some point, however, one of two things can happen. A better, new bridge can be built somewhere that is more efficient for everyone, but troll-free (and perhaps toll-free), to keep its efficiency at full tilt. Or, the local markets that depend on the efficiency of the bridge can have the trolls removed, by force if necessary. The free-software community is, right now, offering a significant "new bridge" to meet the efficiency needs of the coming century. It won't offer the *only* hope, perhaps, but it's clear it might offer a substantial portion of the solution. But those of you who plan on charging tolls on *this* bridge had better be prepared to be barred from entering the community, and/or "removed" upon attempting to slow it down by skimming off the top. We don't *need* you to help us publish inventions, since we already do so by necessity, after all, so any possible benefit of trolls is wasted on us. > One way to get lawyers interested is to stop bashing them and the system > they address; particularly since the chances of changing the law as > applied is virtually nil. Isn't it amazing how lawyers are always the ones who get to *make* the laws, then afterwards claim "well, you can't change the laws, so don't bother trying -- just make friends with *us* and maybe we won't charge so much for you to conduct business in this environment"? Sorry, but I don't buy it. The legal environment can and will be changed to suit the goals of *society*, not *lawyers*, despite what your current hegemony tells you. Others have posted some arguments about the degree to which *effective* copyright protection exists for software, with some claiming this has gone downhill, so that proves the law *can* be changed -- and I doubt this has been the desire of the bulk of IP lawyers, even though I know at least one or two who found some of the growing claims to be, at least, worrisome (usually because they happened to be working for a company that'd be *targets* of litigation). I'm not up on the copyright-lessening details, but I do know that anyone who can't defend software patents applying to free software with any justification beyond "they help to defend free software against software-patent litigation" is likely to be on the wrong side of how the law, and industry and society as well, will be changed to accommodate the inherent efficiencies of free software. (The "inherent efficiencies" I refer to come from the large-scale, open sharing of source code. Whether such sharing is a "good thing" in a philosophical, social, or religious sense is a completely different topic, upon which I indeed have some views. I'm referring to efficiencies that *no other form* of software development can possibly realize, efficiencies that are quite clear to many of us who've been doing all sorts of software development, including both proprietary and free, for decades. They are objectively reasoned about, instantiated, and measured. But they are not the topic of these posts; the Forbes article hinted at some of them.) > > For the most part, this is all an interesting theoretical exercise. > > At some point, there might occur some pretty serious examples of how > > much of an impediment software patents are to the entire industry. > > That leap back up from the "free software" paradigm to the "entire industry." Exactly, since my original point was that the free-software paradigm brings the promise of substantial solutions to problems the entire industry is facing, at *least* in niche areas non-free development just doesn't reach, but perhaps in areas such as OS, compiler, and tailored-user-interface API and implementation development as well, among many other possibilities. And anytime people hand-wave the slow patent system as applied to software because *traditional*, closed, proprietary development is slow and expensive by *contrast*, we will try and quickly point out that that development model is *not* the globally optimal model for software development. (It would be *amazing* if we had managed to collectively converg on a global optimum in a field that is, basically, no more than about 20 years old. Yet some people act as if we had, and claim that, because we've somehow already hit the optimal system for meeting market needs, *any* litigation and/or beauracracy should be above criticism as long as it doesn't significantly impinge on that *particular* system, even though it might hurt other, possibly more globally optimal, ones trying to gain a foothold.) > There's no other meaningful litigation > in this arena. In other words, software patents have benefitted Davids > far more than Goliaths so far as support can be found in the public > record. Name one case where a free-software product has *benefitted* from a software patent against any Goliath at all. (Not that it might not happen in the future.) There are, of course, cases where free-software products have had to be rewritten, or removed, due to patents. E.g. `compress' had to be removed and tons of files using it re-compressed using a new algorithm. Of course, at this point the usual retort is "but this means the software got *better* thanks to patents". Fine, I'll show up at your house randomly and blow holes in it with a shot-gun, let me know whether you agree that this'll be a *good thing* because it'll make your house necessarily more secure (because you'll have *no alternative* but to make it more secure, unless you just give up and move out). Oh, right, you're a lawyer: I'M JUST KIDDING. In the meantime, the initial replacement for `compress', `gzip', is now being superceded in some circles by `bzip2', yet it didn't seem necessary for there to be a patent-infringement threat to make that happen. What *was* necessary was lots of worry, research, and delay to avoid too many people becoming dependent on a new compression algorithm only to find out, later, that somebody *else* had already patented it. We've been burned before, and we're *already* being slowed down by simply *avoiding* being burned again. Permit us the luxury of discussing whether we'll continue to allow our government to provide you patent lawyers with affordable flamethrowers. > > Another summary: since the patent system is all about ensuring that > > inventions are published, it can offer *no* advantages to the > > free-software community, since that community *necessarily* publishes > > all of its inventions, in the form of source code available for > > public review. > > Note we are shifting back down to the "free-software community" (this is > getting tiring -- pick one constituency and stay with it). I picked one *in the beginning* of my entry to this thread, precisely to illustrate how the arguments in favor of a big beauracracy that can only slow software development don't apply *now*, and probably will apply even less in the *future*. Try *reading* the thread before posting. > Here, however, > I believe the author is misguided. The free-software community has not > invented EVERYTHING it uses. Indeed, most of the algorithms used have > come from without that community, using technology and algorithms learned > and disclosed from others (most, but not all of which came from textbooks > and other non-patent literature). Along with the rest of society, the > free-software community will benefit (and will benefit moreso in the > future) from the disclosures of inventions learned, directly or > indirectly, from the incentives to disclose in the patent system. We don't need, and have *never* needed, the patent system to make such disclosures. After all, we publish the source code, and so does everybody else in this community. That's its defining feature. Do you really think that, without the patent system, *no* disclosures of substance would occur? Even in the free-software community, where everything is published as *source code*? How open are you to the idea of having *legal* practices, arguments, and *decisions* be patentable subject matter? How would you like to have successfully argued a case in court, won, collected your fees, and later be successfully sued for millions of dollars because it turns out somebody was awarded for a patent on the arguments you used, for which they'd applied earlier or, perhaps, even *later*? How would you like to have to tell a client "well, I'd like to argue it *this* way, but I can't, because somebody else has patented that method of argument and charges way too much for us to use it"? How would you like to have to spend a substantial portion of every day asking yourself whether some approach to your legal duties could be patentable material and, if so, whether it was worth trying to spend the thousands of dollars to patent it, not to mention the time and effort needed to write it up, all because you were just trying to construct a possible defense against actual litigation in the future? And still not be sure whether any of those patents would be granted, and even if they were, whether they'd be useful in any *actual* litigation brought against you, in that what you had, the litigants didn't need? Would the legal system become *more* or *less* efficient, given such a scenario? What would happen vis-a-vis pro bono work, and the ability of the poor to obtain competent legal counsel, for civil, and for criminal, cases? How much better would the world be if phrases like "Clinton's patented spin machine", "Agassi's patented down-the-line backhand", and "Barry Sander's patented cut-back" were *literally*, i.e. *legally*, true? Yet *all* of these activities take far more up-front analysis and/or practice than the creation of typical free-software "inventions" (in the patentable sense). That is, software is *more* fluid than any of the above, because (among other things) it can be easily and rapidly shared with a huge number of people around the world, even when incomplete. You can't do that with your legal arguments, because you can't give away your strategy before us. Same for Clinton. Either you have to keep your strategy secret until it is used, or, like Agassi and Sanders, you have to practice and practice, plus learn from experience, to discover what happens to work best, before you can really share anything useful with anybody else, especially a very wide audience. > With all due respect to Messrs. Stollman and his growing progeny, if the > works of the inventions set forth in all that source code were all that > the public knew and could know about software inventions, the world would > be a poorer place, indeed. The other paid communities contributed a great > deal toward the state-of-the-art as well. There is a *trivial* number of inventions that would not have been public knowledge without the existence of software patents, AFAIK, encompassing the *entire* free-software source-code base. The "software patents" I've heard about going back decades were all on techniques that were *inherently published* with the code for the system, so they hardly needed patent protection to persuade their being published in the first place. And I doubt you'll be able to go back and show that, without the ability to specifically patent those "inventions", the products themselves (or the specific inventions) would not have been brought to market and thus inherently published anyway. I worked for a variety of proprietary-software companies in the past, and *never* did I hear about a software patent being a reason to bring, or upon failing to be approved, *not* bring, an invention or product to market. Mostly, we just heard about how we should try to "discover" inventions that might be patentable in our code (which was mighty hard, we were too busy writing it and getting it to work), and how a patent would be a feather in our, and our employers', cap -- very little emphasis was placed on the use of such a patent for actual litigation until the early '80s, when "software patents" began to take on some real teeth. > I think there is a middle ground to be found, and Karsten has put his > finger on some very useful and key ideas to that end. I agree, and those ideas are likely to be what will actually happen in the short-to-mid term. In the long term, society gains no benefit from software patents as applied to free-software (or Open Source (TM)) products, so it is best that they should not be applicable to them at all, legally or otherwise. If the non-free developers have to be protected against free developers with software patents, then they have already lost the battle -- and perhaps their best option is to throw off the shackles of their *own* patent protection to better compete. (As a sometimes-proprietary developer, I think that would be best. I do have some reservations about whether society would need the patent system for software run as *services*, e.g. via Network Computers, which is thus never actually published, and is even more of a problem than software published only as difficult-to-reverse-engineer binaries in terms of sufficing.) -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 10:10:04 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208981010040001@tstpa2-11.gate.net> References: <y6hfzjl48l.fsf@tweedledumb.cygnus.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 259 Craig's extensive posting is only summarized below, as extensive quotations from his posting would make this thread burdensomely long. I anticipate that he will feel from time to time that I misrepresented his position, and apologize in advance: there was no way to answer point-by-point without enormouse bandwidth expense. Craig feels I missed his point. I don't think so, but it is clear he has not responded to mine. I feel he has made several errors in his reasoning: * Free-software equates to "the entire software industry" Craig accurately observes that the traditional economic incentives provided to commercial businesses and individuals by the patent system do not accrue to the benefit of a volunteer who claims no interest in a free software product. This is undeniable. He then proceeds to observe that the existence the patent system nevertheless adds costs and expense to the process of developing all software, and hence also free software. This, too, is undeniable. By simple arithmetic, he concludes that there is a net loss under the patent system for free software. On purely economic terms -- I do not disagree. Of course, if the free software movement, like public television and radio, were to capitalize on the system and fund some (or all of) its efforts through acquisition and licensing of strong IP, including patents, to non-free-software industry and individuals, the net economic measures would change. He then makes the leap to conclude that the software patent system is bad for free software folks. This ignores the inchoate benefits to society of the patent system, of which even free software people are a part as well as the benefits of the disclosure that the patent system fosters, which even free software people can read. In maintaining this position, he insists that economic arguments are missing the point, since the economic arguments do not benefit the free software folks. From this conclusion, he makes the even broader leap to conclude that the badness for free software folk now extends to the "entire software industry." (He repeatedly uses the word "entire.") Without more, this point is indefensible, for the economic arguments he rejected *DO* apply to the entire software industry. * The patent system is unavailable to the free software industry This is misguided as well. Karsten and myself have both suggested ways in which low-rent, but effective use of the patent system can be obtained. Both involve obtaining the patronage and sponsorship of others, but that is, after all the point. If free software is a benefit to society (as many people believe public radio and television are a benefit), then it will make the effort to obtain such patronage. Just as volunteer effort, as well as housing and hardware are provided, so too can the patronage of industry and lawyers. If it can't, this informs the debate as to the social merits of free software. * Software Patents vs. Patents at large Craig claims he has not raised questions as to the benefits of IP in general, but merely focused on software patents in particular. Yet the great majority of his patent arguments fall into the categories of "patents are bad" or "bad software patents are bad." The former, I *will* defened to the death (believing as I do in the overall benefits of the patent system), the latter I will not defend at all, believing likewise that bad software patents need to be exterminated, both by discouraging their gratuitous asssertion against less monied persons and by preventing their issue at the outset. I will note that "bad patents" are often used as an argument against the patent system -- bad patents other than software issue and are asserted all the time, yet somehow the American economy has weathered the storm -- it is true that there are often tragic consequenes in individual cases, just as there are when a down-on-their-luck family gets ejected from their home upon foreclosure by a bank unreasonably unwilling to work with them -- but such cases do not on balance justify abrogation of property rights because of the general benefits of property law to society as a whole). But these arguments (both his and mine above) don't really get to the point. Why would it be so that "software patents are bad"? Why is software different? To this (and I will quote here becaue I do not want to presume to understand what he meant), Craig wrote: > > As far as software patents vs. other types: the distinctions are > > sufficiently obvious for anyone wishing to objectively consider > > them. Very few people have had trouble with this, although a few > > who *discuss* "software patents" have insisted there are no real > > differences. The LPF and others have published definitions that, > > as with all legal definitions, are not precise, but sufficiently so that > > they agree on the categorization of the bulk of patents. Clearly this is not a response. Craig excoriates me earlier (indeed suggesting I simply leave and not participate in the discussion) for failing to address what he asserts is "the subject" of the thread and not being responsive to his postings, yet his only substantive argument on the only substantive cases against software patents is that the answer is obvious. Further, it clearly does not matter how many people "believe" in the true faith -- even one lone dissenting person can be right! I have addressed LPF's argument in this thread and others. Craig does not respond to those remarks either. And let me make it clear. I do not merely "*discuss* 'software patents'." I practice in this area of law -- I know what is and isn't possible, and I know what is and is not inherent in the cost of obtaining a patent. I prosecute as eell as litigate patents, and understand what is going on here. I believe there are substantial misunderstandings on Craig's part as to these fundamental points, and will be pleased to enumerate these further, if he is inclined to listen. Further, I do not merely *discuss* software development. I have been a programmer, analyst and software designer for decades before I was a lawyer. I authored an published best-selling computer games. I also worked in academia developing software. I *KNOW* what it takes to make a product, and I *KNOW* what can and cannot be done by a small group of entrepreneurs or volunteers. Accordingly, I would appreciate less ad hominem arguments as to what I understand and do not, and a bit more joining of these issues on the merits. Unlike Craig, I do not presume that my background and contributions permit me to simply ASSERT, without more, what I believe to be the truth, expecting others to accept or simply withdraw. Of course, I proffer my advice and guidance (though no legal advice, of course :-) ) on these issues, and will defend these points in the hope they might be helpful. Take them or leave them, but neither Craig nor his readers are diminished as people because they do not accept my views on faith. Challenge them fairly and directly, and I will probably give a fair and direct response within the reasonable limits of my time and patience. I believe Karsten will vouch for me on this point. I suggest that Craig adopt a similar view. * the parade of horribles Craig made several salient points here, and I do not address them all. A fair summary is this: > I've not seen any evidence that > > it has helped at all, and it *will* significantly hurt the entire > > industry within ten years, *noticably*, as software itself makes > > choices regarding what algorithms to apply to new problem domains > > without the awareness of the humans posing the problems. LPF made the same claim in 1991, but the parade of horribles never occurred. Why is that? Clearly, Craig's claim is presently non-falsifiable, but at least it bears some challenge on its face. I *DO NOT DOUBT* that some bad will result from the patent system as applied to software, and that war stories will be told. Particularly when viewed in the short term, some can be enormously harmful in the small. When viewed in the large, however, such stories will I believe be seen in the balance only one side of an overall cost and benefit to society. Many "horror stories" serve in my mind as examples of the system working as it should. The Comptons multimedia patent played out exactly as it ought to, and should be a model for industry when threatened by bad patents. Reexamination is not a great device in practice for defendants in a specific action, but it *is* an excellent low-cost means to obtain credible review of af patents in the face of prior art on a shoestring budget. If the present patent reform bill is passed as originally proposed in this light, reexamination could open up substantially as a cost-effective alternative to litigation. This addresses the "bad software patents are bad" argument only, I will acknowledge. Legitimate assertion of "good" software patents, it seems to me, is a reasonable result of the patent system. How to deal with it? Engineering around the patent is the most cost-effective solution; most software patents are far narrower than they appear, and work-arounds can often be done (often with the result that a new and better invention is developed -- a pleasant side-effect of the patent regime). Obtaining patronage and licenses, eithe from the patentee or others to respond to it and provoke cross-licensing is another. Finally, if OSS gets its act together, and is actually contributing to the body of knowledge, it can use its licenses and its own patents in defense. It is the nature of IP, which must balance at least two inherently inconsistent interests: (1) the interest of inventors to benefit from the fruits of their invention; and (2) the interest of others (including inventors) to benefit from free and fair commerce and to stand on the shoulders of those who have come before them. Accordingly, it is naive for supporters of any IP system to pretend anything is all good or all bad, but to acknowledge weaknesses inherent in the system. Nor do I pretend that minor repairs are not reasonable -- I *do*, if you will, think that repairs to a well-oiled and effectively operating machine, however inefficient, should be made carefully and with full appreciation of all of its implications. I believe proposals I have seen to date to be "knee-jerk" and ideological responses, indeed, responses designed to undermine rather than support the fundamental policies, but rather than deal in generalities and in platitudes would prefer to speak specifically and concretely on each in turn. My prediction for the future is this: I don't think the sky is falling. I *do* think that the software patent system will continue and exdpand for decades, on balance more to the benefit than to the detriment of society. I *do* think that OSS-like efforts can in time benefit more than be harmed by the system, particularly if they "get with it," rather than ignore the way things operate. This view is as non-falsifiable at present as is Craig's, and time will tell. In the meanwhile, however, I would make the following observations: (1) Software patents and the patent system is largely misunderstood. Responsibly addressing what it is and is not benefits everyone. Proferring slogans and ideological lcok-step responses is not helpful, and often leads to bad results that could have been avoided. [Craig's near-abandonment of g77 is a case-in-point. Had he been well-advised, it is unlikely he would have come close to such a consideration. I would be interested in knowing precisely which patents were asserted against him that caused him to think about this.] (2) The software patent system is not going away in fact. Indeed, State Street Bank has removed the last barriers (at least in public perception) as to questions whether a software invention faces Section 101 deficiencies. Accordingly, it is necessary for OSS movement to devote at least some of its efforts to finding ways to work with the patent system, both offensively and defensively. Public radio and television is an excellent model. Suggestions made by KarstenSelf and MySelf to obtain patrons and pro se attorneys is another avenue. (3) The debate needs to get less acrimonious and more truth-seeking. It is unacceptable simply to repeat dogmatic lock-step conclusions. The answer clearly lies in the middle and that middle needs to be found, or we all rate to suffer as a society. Reversion to ad hominem attacks are both inappropriate and unfortunate -- they prove nothing and marginalize EVERYONE, not just the person so insulted. YES, the patent system is not perfect, but NO it is not the Great Satan either. Software patents are a reality. Deal with it. Undertand them. Know what you are truly getting into, and deal with the consequences. You are not impotent, particularly if you are well-informed. It is not the case that software patents are inaccessible if you are working on a shoestring budget, particularly if you are working for the benefit of the public. There ARE things that can be done, and indeed, there ARE things that SHOULD be done. Gainsay is fine so far as it goes, but it doesn't answer any of the questions that need answering: more is required in a civilized debate. And one aside, addressing more to the tenor of the debate than to their merits: attempts to marginalize arguments made by lawyers simply because they are made by lawyers "who get rich" by exploiting software patents are as offensive as they are trite and incorrect. Lawyers do not "get rich off" software patents, and there is PLENTY of work for lawyers, with or without software patents. I made far more money as a computer game designer than I will likely ever make as an attorney. Some of us disagree with Craig's positions, but our positions are not discredited merely for that reason. Nor is it meaningful to set up straw men and argue that MY position is discredited because Craig's straw man is indefensible. I would appreciate if Greg would address those arguments I made, rather than those I did not. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 18:13:35 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35D1DB4F.1001BC6A@ix.netcom.com> References: <werdna-1208981010040001@tstpa2-11.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 94 I'll keep my comments brief. Andrew C. Greenberg wrote: > Craig feels I missed his point. I don't think so, but it is clear he has > not responded to mine. I feel he has made several errors in his > reasoning: > > * Free-software equates to "the entire software industry" > > Craig accurately observes that the traditional economic incentives > provided to commercial businesses and individuals by the patent system do > not accrue to the benefit of a volunteer who claims no interest in a free > software product. This is undeniable. He then proceeds to observe that > the existence the patent system nevertheless adds costs and expense to the > process of developing all software, and hence also free software. This, > too, is undeniable. By simple arithmetic, he concludes that there is a > net loss under the patent system for free software. I'll make enemies of both sides by saying that neither understands where OSS is going (I of course see the light). I feel that it will become a major part of the commercial IT industry, with major corporate players holding important roles. Yes, there will be room for small companies and volunteer efforts, but the fact that programmers need to by paid (by someone) necessitates some involvement of the business community. As the business world recognizes the interest, and vulnerabilities, of OSS, I see changes to patent, but largely at first in how current law is utilized in specific licenses and corporate contracts. Andy recognizes this concept: > This is misguided as well. Karsten and myself have both suggested ways in > which low-rent, but effective use of the patent system can be obtained. > Both involve obtaining the patronage and sponsorship of others, but that > is, after all the point. If free software is a benefit to society (as > many people believe public radio and television are a benefit), then it > will make the effort to obtain such patronage. Just as volunteer effort, > as well as housing and hardware are provided, so too can the patronage of > industry and lawyers. If it can't, this informs the debate as to the > social merits of free software. Good point on social merits. Changes in case law and statute would likely follow, and with a significant lag. IMO, OSS cannot wait for the time it would take legal mechanisms to work, and should exploit commercial interests to attain the protection it seeks. Much deleted. I agree with the general characterization of Craig's comments. I think Craig is well intentioned if ignorant of the legal aspects of what he speaks, much as I was here recently. I don't think Andy would respond at such length and depth if he didn't see some merit in doing so. The followng are salient and worth repeating. > This view is as non-falsifiable at present as is Craig's, and time will > tell. In the meanwhile, however, I would make the following observations: > > (1) Software patents and the patent system is largely misunderstood. <snip> > (2) The software patent system is not going away in fact. Indeed, State <snip> > (3) The debate needs to get less acrimonious and more truth-seeking. It <snip> > Reversion to ad hominem attacks are both > inappropriate and unfortunate -- they prove nothing and marginalize > EVERYONE, not just the person so insulted. > > YES, the patent system is not perfect, but > NO it is not the Great Satan either. > > Software patents are a reality. Deal with it. Undertand them. Know what > you are truly getting into, and deal with the consequences. <snip> > Andy Greenberg -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:51am up 60 days, 8:20, 3 users, load average: 1.40, 1.22, 1.03
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 13 Aug 1998 10:28:25 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y667fxrm5y.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 107 "Karsten M. Self" <kmself@ix.netcom.com> writes: > I'll make enemies of both sides by saying that neither understands where > OSS is going (I of course see the light). I feel that it will become a > major part of the commercial IT industry, with major corporate players > holding important roles. Yes, there will be room for small companies > and volunteer efforts, but the fact that programmers need to by paid (by > someone) necessitates some involvement of the business community. Karsten, you can't come *close* to knowing whether I understand where OSS is going, since you haven't learned what my views are about it -- I haven't posted them at any length in *years*, IIRC. If you'd like to call me and talk with me about this, I'd be more than willing in your case, as you seem to have both some grasp, and some genuine curiousity, plus a genuine desire and a real ability to share what you have learned. > Much deleted. I agree with the general characterization of Craig's > comments. I think Craig is well intentioned if ignorant of the legal > aspects of what he speaks, much as I was here recently. I don't think > Andy would respond at such length and depth if he didn't see some merit > in doing so. I think Andy has mischaracterized my comments fairly consistently throughout, and I haven't seen much evidence that he's viewed this discussion as an attempt to educate me, so much as to ridicule me. You've taken a different approach, thankfully, but I find your preferring Andy's follow-ups to my posts to my original posts rather worrisome. As far as what you found worth repeating: "time will tell", indeed, but, years ago, when I debated these issues on USENET, software- patent attorneys (well, one in particular) seemed to not think free software would amount to much at all. Well, that has changed, and, there is *no* evidence it was due to any benefits from software patents that I've seen posted, and there's *already* evidence free-software development has been *slowed down* by software patents. Why I'm so "uninformed" by pointing out that this *suggests* that, indeed, the software patent system might be more expensive than is worthwhile, is beyond me. I've yet to see anyone actually debate that fundamental point, e.g. explain why free-software development will actually go *faster* and *cheaper* in the presence of software patents (admittedly a tough thing to do). Oh, one lovable snippet from an old USENET conversation on the topic, by a fellow named Bart Lidofsky: "The holders of the software patents are aware of the precarious ground on which they stand, and carefully calculate royalties so as to make it much less expensive to give in than to fight (patent cases are notoriously expensive; my father bought me a brand new car on the after-tax and expenses fee he got from a single day of testimony. The testimony? That the fact it takes 4 equations to solve for 4 variables is a law of mathematics)." Finally, I've finally found something in my archives, in a post from Terry Ritter circa September 1991, following up one of my posts, in a thread discussing software patents. This snippet pertains to free software (again), though that wasn't the thrust of my involvement in the thread (again): >>Again, software patents ultimately means no way for free software to >>continue, at least not without massive support by the proprietary software >>industry (not very likely). > >The problem is not patents. > >The problem is that even free software needs support and maintenance, >but there is no cash flow for it. Support is important. Even when >software is free, without support (and continued development) it's >almost worthless. > >The problem is not "software patents." The problem is the lack of >a business basis for support. The reason I resurrect this is to illustrate the belief that existed among *strong* supporters of software patents that the system itself couldn't be at fault, but free software somehow was. (Also, I pat myself on the back a bit by posting my comment suggesting the need for the kind of system that Karsten proposes, though I did claim it wasn't very likely back then. I think it's more likely now.) Now that there *is* and *has been* a business basis for support, there *still* exists a problem with software patents, which could conceivably shut down Linux, egcs, Apache, etc. *today* (well, pretty doggone quickly) with suitable litigation. So it's nice that we're at least at the point where most people can agree that free software no longer has this "problem" of a "lack of a business basis for support". Leaving the pertinent question as: "must this support be forced to also include defense against software-patent lawsuits, or is it more reasonable for society to conclude that software patents not be applicable to free software at all, thus saving all the expense and bother, given that all the pertinent inventions will be published anyway?" -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 18:10:20 GMT From: ritter@io.com (Terry Ritter) Message-ID: <35d32c05.5936460@news.io.com> References: <y667fxrm5y.fsf@tweedledumb.cygnus.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 97 On 13 Aug 1998 10:28:25 -0400, in <y667fxrm5y.fsf@tweedledumb.cygnus.com>, in misc.int-property Craig Burley <burley@tweedledumb.cygnus.com> wrote: >[...] >Finally, I've finally found something in my archives, in a post >from Terry Ritter circa September 1991, following up one of my >posts, in a thread discussing software patents. This snippet >pertains to free software (again), though that wasn't the thrust >of my involvement in the thread (again): > >>>Again, software patents ultimately means no way for free software to >>>continue, at least not without massive support by the proprietary software >>>industry (not very likely). >> >>The problem is not patents. >> >>The problem is that even free software needs support and maintenance, >>but there is no cash flow for it. Support is important. Even when >>software is free, without support (and continued development) it's >>almost worthless. >> >>The problem is not "software patents." The problem is the lack of >>a business basis for support. > >The reason I resurrect this is to illustrate the belief that >existed among *strong* supporters of software patents that >the system itself couldn't be at fault, but free software >somehow was. (Also, I pat myself on the back a bit by posting >my comment suggesting the need for the kind of system that >Karsten proposes, though I did claim it wasn't very likely back >then. I think it's more likely now.) > >Now that there *is* and *has been* a business basis for support, >there *still* exists a problem with software patents, which >could conceivably shut down Linux, egcs, Apache, etc. *today* >(well, pretty doggone quickly) with suitable litigation. > >So it's nice that we're at least at the point where most people >can agree that free software no longer has this "problem" of a >"lack of a business basis for support". It may come as no particular surprise to find that I, at least, do *not* agree. I doubt that my opinion has changed much from my published 1991 response to the LPF: http://www.io.com/~ritter/ARTS/POLIPAT4.HTM There are many businesses of which I would not be proud. One of these is the business of supporting a product is provided without guarantee of quality, even if the "guarantee" is simply a responsible vendor. Can a free product have such guarantees? If so, who *really* pays to make those guarantees good? Frankly, this sounds like a way to force "the customer" into custom development, by *calling* it "support." I don't know what this "support" is, but normal product support is paid for by all users, and each support development occurs just once. It seems to me that one of the biggest and most unfortunate differences between some software businesses and hardware is the general "hack" quality of software production. In my experience, hardware production is test, test, test, test, test, while software production is "no obvious bugs, so ship it." I see quality is a contract between producer and user, delivery for a price, independent of implementation technology. And when the economic situation is set up so that contract *cannot* be enforced -- even in minor ways for heinous problems -- I think society needs a different solution. Things do not have to be this way. Both abstractly and in practice software *is* hardware: When "software" runs, there is no software there, just bits and gates and cells and voltages. Software does not function; it describes and customizes a machine which functions. If hardware can be built reliably, so can software. The missing quantities here are the *will* to produce quality software and stand behind it, and the *money* to make that happen. But it is very difficult for quality to compete with free stuff. We certainly have ample evidence that for-profit software production does not necessarily produce high-quality software, and there is some evidence that some free software can be good. Nevertheless, in free products I see a fundamental disconnect between the producer and the user which seems inappropriate to me. What I would *really* like to see are public-domain OS interface *standards*, implemented by multiple OS vendors, which would hopefully provide the customer with a range of implementations of different quality and price. Applications would then be competing on the same playing field, with no hidden "OS tricks" or advance knowledge to stack the deck. --- Terry Ritter ritter@io.com http://www.io.com/~ritter/ Crypto Glossary 1998-08-12: http://www.io.com/~ritter/GLOSSARY.HTM
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 06:08:42 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35D3D46A.B6F3C1B2@ix.netcom.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 94 Craig Burley wrote: > > "Karsten M. Self" <kmself@ix.netcom.com> writes: > > > Andy prefers a minimal interventionist/minimal change route. This can > > be a useful counterpoint. He's not completely averse to the effects of > > substantive persuasion. > > It'd be good to see more evidence of that. Note that I, too, prefer > that route. I wish the minimal route had been chosen, instead of I didn't say that he's not argumentative as hell and as rough as can be on the clueless and trolls. My own history here started late May/early June. Try searching DejaNews for my email in mist.int-property. He and I were doing some big-time head-butting. Finally straighted out hard feelings in some offline email -- I said I'd pretend he wasn't as annoying as he seemed, and he agreed to pretend I'm not as stupid as I seem. Fact that I was willing to do some legwork, read up on law, cases, and articles helped. BTW, you might want to pay a visit to http://www.findlaw.com/. You'll find the United States Code (U.S.C.), Supreme & Circuit court cases (to 1893 and various dates in the 1980s, respectively), state law and case studies, and scads of other stuff. Very valuable. > just granting patentability to software with little or no public > discussion. AFIAK, this sort of emerged from a change in the courts' interpretation of the law, much as the origins of copyright grew from a change in the Copyright Office's > > Me and my big mouth. > > *You* didn't start it, you didn't even follow up my first two entries > into it, IIRC! You bet your sweet ass I did!! I posted the original "Pam Sam at OS Town Mtg" message. No, I didn't respond to your original post. I had read the Forbes article -- actually it's what inspired the Patent Patron idea -- the discussion of what IBM could offer to Apache. I read that a couple of times and said, "wait a minute....". The rest is history. Picked up on you after your first dust-up with AG. > > I'm not a lawyer. Quasi-informed on the law, and passionate about OSS. > > I defer to Andy's knowledge of legal matters unless I can find > > contradictory evidence. > > I'd like to see more posting of his personal legal and business > experience showing how the industry couldn't survive (or flourish, > at least) without software patents, and fewer mischaracterizations > of what I've written. He's a lawyer, you're the opposing counsel. If you want information damaging his position, you'll have to supply it. Depending on his mood, he may or may not conceed, he's not the judge either (sometimes he forgets this). Note I've looked for arguments favoring patent on economic and societal grounds. Haven't found much. Note that it's usually the attackers of the status quo who are most vocal -- those who benefit by it are too busy reaping their rewards. > I might as well leave the discussion, since I don't really have a > problem "now" with software patents -- they're still practially > not on my radar screen, they haven't significantly slowed down or > stopped the free-software community yet, and when they do, there > is a *wide* variety of possible responses, which, in a community > like this, are likely to all be employed all at the same time > by different people. :) Well, if you do take off, I'd like to thank you for the Two Worlds suggestion. It's one of three viable defenses/alternatives I see for OSS and patents right now. Others are Patent Patron and Andy's Public Radio/ASPAC model. > James Craig Burley, Software Craftsperson burley@gnu.org -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:41pm up 61 days, 20:10, 2 users, load average: 1.09, 1.19, 1.19
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 10:48:13 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208981048130001@tstpa2-11.gate.net> References: <y6hfzjl48l.fsf@tweedledumb.cygnus.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 121 Having dealt generally with Craig's extensive posting with a regrettably lengthy posting of my own, I would like to address a few salient points that struck my interest: I. Craig's "Two Worlds" Proposal > > IMO, the solution is simple: pass laws that rule out *all* > > software licensed under conditions that meet Open Source (TM) > > (or similar) guidelines, such as the GPL, as targets of any > > software-patent-related litigation. > > > > In other words, since an entire subclass of a functional industry > > *always* publishes its inventions, don't allow it to be threatened > > by a beauracracy that exists solely to ensure inventions are being > > published. This is a very interesting solution to the "problem" Craig raises. Presuming that Craig is correct about the costs and benefits, what would be the harms, if any, of such a regime? There exist compulsory licenses in other areas of IP protection, why not a CL for OS software (perhaps as a function of revenues generated from the software, which would be zero if the software is, in fact, free)? By the way, I am ignorant as to what are the "GPL guidelines" and would appreciate a pointer. (or is that simply the Gnu Copyleft stuff?) I see a few issues worth noting: (1) How to avoid predatory practices by a company who wishes to undermine another commercial competitor by exploiting their patents in a free giveaway of an infringing product, thus at the same time neutralizing the competitor's market for the patented features? Would such laws effectively undermine the patent system at large by providing incentives for those at a competitive disadvantage to "explode" the patent by making OS software to that effect? (2) The patent system requires an enabling disclosure. OS simply requires a manifestation of the invention. These are not the same thing. Moreover, what is the public benefit of the CL for OS software? It doesn't encourage the disclosure of new software inventions in OS, merely the disclosure of further exploitation of already disclosed inventions. Finally, I am not sure how society benefits by providing that a person who has a legitimate patent covering an invention that can implemented in software benefits by letting others knock off the product and giving it away for free. If the original product's creation was beneficial to society, how does eliminating the incentive to create it and disclose its operation by subsidizing through a free compulsory license anyone who knocks it off, but also gives it away for free foster that benefit? Craig appears to presume that the sole purose of the Patent clause and the Patent Act is to foster disclosure. He is mistaken in this regard (although disclosure is certainly a big art of the societal benefit). The purpose is to provide incentives with respect to "public goods" through limited monopolies. Monopolies limited with holes big enough to drive a truck through them provide no such incentives. I do not wish to debate here the virtue of the monopoly so much as to point out that Craig is not "merely" proposing a parallel system that provides the same benefits in a different way. It appears instead that his proposal would provide no further devlopments, and would undercut the former. Nevertheless, the proposal is intersting, and perhaps a more refined version of it might address the complex competing policies we would all wish to promote. II. Nihilism > In the long term, society gains no benefit from software patents as > applied to free-software (or Open Source (TM)) products, so it is > best that they should not be applicable to them at all, legally or > otherwise. > > If the non-free developers have to be protected against free > developers with software patents, then they have already lost > the battle -- and perhaps their best option is to throw off > the shackles of their *own* patent protection to better compete. > (As a sometimes-proprietary developer, I think that would be best. > I do have some reservations about whether society would need the patent > system for software run as *services*, e.g. via Network Computers, > which is thus never actually published, and is even more of a > problem than software published only as difficult-to-reverse-engineer > binaries in terms of sufficing.) Craig here argues that "Patents are Bad," that in the absence of all IP protection, software will nevertheless be created, and people will continue to invent. I think history proved otherwise, showing that nations with strong IP have been substantially more inventive and substantially stronger in most meaningful areas of technology than those which have not. The issue is not whether, after-the-invention-is-disclosed, a software company cannot compete with a generic knock-off artist who can on-the-cheap exploit that technology being unburdened with the cost of having developed the new technology (and the countless technologies that didn't work). The second product in the market is often much cheaper than the first one for precisely those reasons -- with the benefit of hindsight, a product can often be cheaper, better, faster and more responsive to market needs. The issue is whether before-the-invention-is-invented, resources will be dedicated to making the invention -- or to making improvements on the invention. It is not whether software that is made by others for me to have for free is a good thing, but whether the software not yet invented would ever have been made. Craig spends much energy distinguishing his g77 compiler from commercial compilers and the impact software patents had on his completion of his compiler. I am curious what software patents, if any, were so threatening as to meaningfully preclude its completion? Where any actually threatened? (I propose discussing the specific patents as examples of both his and our previous discussions). I was surprised to hear that there were issues, as most compiler technology, particularly for "traditional" programming languages, are very well-understood and particularly well-documented in the literature. Indeed, I didn't see how software patents implicated this at all -- and would be very interested to hear the details. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 22:39:27 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208982239270001@tstpa2-80.gate.net> References: <6qsj3r$1k01@bugsbunny.matrox.com> <werdna-1208981048130001@tstpa2-11.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 35 In article <6qsj3r$1k01@bugsbunny.matrox.com>, "Ryan Drake" <rdrake@dont.spam.matrox.com> wrote: > Just my two cents... I'm sure glad no one was able to patent "Calculus" or > "Physics". If that were the case we'd probably still be driving around in > horse-drawn carriages... > > Although I believe patents are a good way to protect specialized inventions > (gadgets OR software), I think some processes do humanity more good when not > patented. The Supreme Court (and I) agree with Ryan. It's very important to understand the distinction between patentable and unpatentable subject matter. While Calculus and Physics (as abstract laws and formulae) are expressly excluded from patentable subject matter, so too are mathematical algorithms, and in PRECISELY THE SAME WAY. You cannot patent a formula, pure algorithm or law of nature, per se. However, you CAN patent the application of such a formula, algorithm or law of nature to a concrete and meaningful application, when manifest as a concrete process or apparatus. Thus, a patent on a pendulum might be permissible, while the particular mathematics and physics would have remained free for other applications. And, with all due respect, its just as reasonable suggest that if horse-drawn carriages weren't patentable, as well as technologies derived therefrom and developed thereafter, we'd probably still be driving around in horse-drawn cariages. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 08:28:33 GMT From: phm@a2e.de (PILCH Hartmut) Message-ID: <ExMCvM.2xp@a2e.de> References: <werdna-1208982239270001@tstpa2-80.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 45 werdna@nonspam-gate.net (Andrew C. Greenberg) writes: >It's very important to understand the distinction between patentable and >unpatentable subject matter. While Calculus and Physics (as abstract laws >and formulae) are expressly excluded from patentable subject matter, so >too are mathematical algorithms, and in PRECISELY THE SAME WAY. >You cannot patent a formula, pure algorithm or law of nature, per se. >However, you CAN patent the application of such a formula, algorithm or >law of nature to a concrete and meaningful application, when manifest as a >concrete process or apparatus. >Thus, a patent on a pendulum might be permissible, while the particular >mathematics and physics would have remained free for other applications. This shows where the problem with software patents is: Software is not necessarily a commodity. It can be a made into a commodity, but it can also viewed as a piece of text written in a particular formal language. The FSF never speaks about software "products" but only about "works" or "pieces" for this reason. Software patents are only applicable to "products", not to "works". Whatever is placed under Open Source license terms is only a work (abstract system of ideas) and can never become a product (concrete process or apparatus). Thus when a company uses a software patent to keep a competitor abreast, that competitor should, according to the spirit of patent law as described by you, have the option to retaliate by making contributions to the free software community. Patents would have an impact on the Open Source work though. They would make the license conditions such that, as soon as somebody built a commodity around or on top of this work, patent fees could be charged. This would mean that everything built on the OpenSource work would again have to be OpenSource, which is very similar to what the GPL aims at. Making knowledge public was after all the purpose of the patent system, wasn't it? -- Hartmut Pilch <phm@a2e.de> a2e Language Services Pilch, Wang, Fujita & Co better communication by virtue of language barriers http://www.a2e.de/oas/, Tel +49891278960-8
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 07:46:18 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1308980746180001@tstpa2-80.gate.net> References: <ExMCvM.2xp@a2e.de> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 73 In article <ExMCvM.2xp@a2e.de>, phm@a2e.de (PILCH Hartmut) wrote: > This shows where the problem with software patents is: Software is not > necessarily a commodity. It can be a made into a commodity, but it can also > viewed as a piece of text written in a particular formal language. The FSF > never speaks about software "products" but only about "works" or "pieces" > for this reason. That might be the problem if a claim were directed to a piece of text written in a particular formal language. It is important to remember that a patent's monopoly id defined by the claims of a patent, and not by the general subject matter identified or discussed in the title, abstract or specifiction. Although the specification relates to the cosntruction of a claim, the claim's the thing. Claims are typically directed to apparatus and methods, and not to books. To the extent that a claim were directed to text on paper, there remains the printed matter exception. Remember, a patented invention must be useful, in the sense of having utility. For protection of expressions of an idea, a different regime (copyright) is used. > Thus when a company uses a software patent to keep a competitor abreast, > that competitor should, according to the spirit of patent law as described > by you, have the option to retaliate by making contributions to the free > software community. I have never seen a case where "retaliation" by disclosing a publicly disclosed idea, or a manifestation of it would be actionable. The difficulty comes when the disclosure of the embodiment of the idea is "made, used, sold or offered for sale." Any one of those things is an inringement. Now, if I engage in conduct, knowing that my conduct is likely to lead to infringement and it does, I may not be responsible for direct infringement, but I would be responsible for indirect infringement. "Retaliation by making contributions to the free software community," expecting that the software would be used, would very likely constitute contributory infringement or an inducement to infringe. > Patents would have an impact on the Open Source work though. They would > make the license conditions such that, as soon as somebody built a commodity > around or on top of this work, patent fees could be charged. This would > mean that everything built on the OpenSource work would again have to be > OpenSource, which is very similar to what the GPL aims at. This *is* interesting. PatentLeft (should we call it a "Latent"?) is something I hadn't considered -- using patents to protect the balance of what is in an OSS program. Under Copyright law, given access to OSS source code, a copyleft can be avoided by a simple process called a "clean room," whereby a specification of "ideas" is developed, passed to persons who didn't see the source for development, and evaluated by the specification team for conformity with the original, thereby making it possible to prove that the new program, though clearly derived from the original, was not "copied" in a sense that would make it subject to a claim of copyright infringement. Such not-so-reverse engineering (given that they begin with source code) is constitutionally protected and clearly fair use. Patents on the software would preclude the use of particular program structures and get closer to the "ideas" of the program, so that a Latent license, like a CopyLeft would more strongly enforce the OSS nature of the software and its progeny. > Making knowledge public was after all the purpose of the patent system, > wasn't it? That is certainly one of the princpal purposes of the patent system -- of course it is not the only one. Disclosure in a specification is undoubtedly the quid pro quo for the patent monopoly resulting from allowance of claims enabled by that disclosure. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 08:38:14 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D30866.6BD17597@ieee.org> References: <ExMCvM.2xp@a2e.de> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 45 PILCH Hartmut wrote: > > This shows where the problem with software patents is: Software is not > necessarily a commodity. It can be a made into a commodity, but it can also > viewed as a piece of text written in a particular formal language. The FSF > never speaks about software "products" but only about "works" or "pieces" > for this reason. Whether it is a commodity or not is irrelevant. Also, whether it can be viewed as a piece of text is irrelevant. Software has in essence at least two different aspects, its literary content and its functionality, and both are potentially protected by very different laws. > Software patents are only applicable to "products", not to "works". Whatever > is placed under Open Source license terms is only a work (abstract system > of ideas) and can never become a product (concrete process or apparatus). I load software into a general purpose computer, and it becomes a special purpose computer. That is usually a machine under the patent laws. What you say in your Open Source license is irrelevant. > Thus when a company uses a software patent to keep a competitor abreast, > that competitor should, according to the spirit of patent law as described > by you, have the option to retaliate by making contributions to the free > software community. Absolutely does not make sense. Please expound. > Patents would have an impact on the Open Source work though. They would > make the license conditions such that, as soon as somebody built a commodity > around or on top of this work, patent fees could be charged. This would > mean that everything built on the OpenSource work would again have to be > OpenSource, which is very similar to what the GPL aims at. Again, I think that you are confusing license provisions with patentability. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 13 Aug 1998 07:07:32 GMT From: Stefaan.Eeckels@ecc.lu (Stefaan A Eeckels) Message-ID: <6qu3bk$e22$1@justus.ecc.lu> References: <6qt7eh$dvo$1@jaka.ece.uiuc.edu> <werdna-1208981048130001@tstpa2-11.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 48 In article <6qt7eh$dvo$1@jaka.ece.uiuc.edu>, peltz@jaka.ece.uiuc.edu (Steve Peltz) writes: > ALL of > these are "clever", but all can be easily "invented" by someone working > on the problem. I don't think something is worthy of being patented if, > by sitting 10 programmers down to solve a similar problem, 5 of them > will come up with that same technique. But the records of patent offices are full of 'obvious' solutions. Quite often the 'obviousness' is post-factum; humans have a tendency to discover complex solutions before they discover the simple ones ;-) One of the problems with history is that it is selective - some facts have never been recorded. From a passion for inventions weird and whacky, I can assure you that patents have been delivered for the most obvious (and ridiculous :-) mechanical contraptions. What hasn't emerged from the computer age are the 'inventors' persons who'd wrack their brains to come up with inventions, not simply to use them once in a product, but to patent them (or sell them to big companies). At least, that what they hope to do :-) I guess it's an attitude problem ;-) but seriously, putting too much emphasis on the 'speech' aspects of programs doesn't help either. After all, a programs is basically the stuff that adapts a non-specific tool or machine to a particular problem. Mutatis mutandis, this is similar to the process that adapts a block of metal or wood to perform a particular function. IMHO, the case for 'free software' or OSS is that the best method to ensure that important software (such as an OS or a networking stack) is secure and correct, is to publish the source code and make it available for public scrutiny. I wouldn't put faith in programs (including my own) that haven't been scrutinized by a number of independent reviewers, and that I cannot examine myself (if necessary). Microsoft will have to realize that you cannot have a reliable OS unless it's OSS ;-) Just my $0.02 -- Stefaan -- PGP key available from PGP key servers (http://www.pgp.net/pgpnet/) ___________________________________________________________________ Perfection is reached, not when there is no longer anything to add, but when there is no longer anything to take away. -- Saint-Exupery
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 13 Aug 1998 11:14:43 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y64svgsyl8.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 297 werdna@nonspam-gate.net (Andrew C. Greenberg) writes: > I see a few issues worth noting: > > (1) How to avoid predatory practices by a company who wishes to undermine > another commercial competitor by exploiting their patents in a free > giveaway of an infringing product, thus at the same time neutralizing the > competitor's market for the patented features? Would such laws > effectively undermine the patent system at large by providing incentives > for those at a competitive disadvantage to "explode" the patent by making > OS software to that effect? Very insightful! I think we "think" the same way, looking for ways that people might exploit supposed "solutions" to (perceived) problems. Note that Microsoft has been accused of doing the above anyway, ignoring the patent issue. Anyway, I admit that about all the up-front thinking I did along these lines was "well, there'd be pressure to release free-software variations of everything your competitor patented", a big grin spread on my face, and I decided to stop thinking about it, and hope nobody else thought about it. :) > (2) The patent system requires an enabling disclosure. OS simply requires > a manifestation of the invention. These are not the same thing. > Moreover, what is the public benefit of the CL for OS software? It > doesn't encourage the disclosure of new software inventions in OS, merely > the disclosure of further exploitation of already disclosed inventions. Good points, and all I can suggest offhand (not being nearly up on the topic enough to discuss much further) is that the benefit would be heightened if the rule applied to any free-software publications that occurred since *application* of the patent, which means the public had the invention available to it before public disclosure via the patent system. > Finally, I am not sure how society benefits by providing that a person who > has a legitimate patent covering an invention that can implemented in > software benefits by letting others knock off the product and giving it > away for free. If the original product's creation was beneficial to > society, how does eliminating the incentive to create it and disclose its > operation by subsidizing through a free compulsory license anyone who > knocks it off, but also gives it away for free foster that benefit? It's the same kind of trade-off thinking that justifies patents in the first place. If the original product's creation was beneficial to society, the market would reward that creation, right? (Is there any *other* objective basis to assess value?) And, given that the reward exists, why need the patent system, especially in a field where publishing is often effectively automatic anyway? My answers are the typical ones regarding the value that *society* places on well-constructed published descriptions of inventions, sufficient to give society a reason to hand over monopolies for the inventions. > Craig appears to presume that the sole purose of the Patent clause and the > Patent Act is to foster disclosure. He is mistaken in this regard > (although disclosure is certainly a big art of the societal benefit). The > purpose is to provide incentives with respect to "public goods" through > limited monopolies. Monopolies limited with holes big enough to drive a > truck through them provide no such incentives. I distinguish between goals/objectives and designs and implementations. If we wanted to provide incentive to "public goods", we could do that without using anything quite like the patent system. E.g. appoint a board of Overseeing Scientists to judge which published papers most benefitted society (through practical inventions, whatever), and have society (government) pay the publishers, accordingly. We tend to prefer market mechanisms based on property rights (and nurturing responsibilities) here, so we picked a system that rested somewhat (perhaps uncomfortably) on that basis. Same thing for copyrights and trademarks: it's easy enough to do mind-exercises separating the various threads of the law, substituting other approaches, and seeing what might happen (at least it is for me). With patents, the *goal* is publication. Rewarding invention is trivially done through market action -- the problem is encouraging *publication*. Justifications about the "public good" and improving the progress in the sciences and arts all stem from this. Without the *publication*, none of this good accrues. Limited monopolies would often be *effectively* granted "by nature" (an unshared invention, kept secret, is one others can't easily use), and government could even enforce that by providing an entirely *secret* patenting system if all it wanted to do was reward inventors beyond what the market might do. So, first and foremost, our patent system is about encouraging publication. The rest of it is, AFAICT, all about "well, we like market mechanisms based on granting property rights, even if we have to create the property out of thin air, so let's go with that". And I'm all on board with that, but continue (for many years now) to seriously question whether it's worthwhile for software, *especially* in an environment where publication of software reigns (fairly) supreme. Given that patent law already excludes some uses for research purposes, it is not unreasonable to wonder whether the unique nature of the free-software community -- unique not so much because it is free, but because it is software -- deserves a special, total exemption from patent-infringement liability. Offhand, I don't see easy solutions to the problems you pose, especially the one that I would word as "I want to get the upper hand on my competitors' software-patent portfolio, so I'll release trivial free-software products just encompassing those patents", other than to make the exemptions operate for only those free-software products released before publication (approval) of the patents. And, that'd not do much to reduce the problems I see with software patents slowing down development, though at least it'd protect the developer from land-mine-type patents (by having him spend 90% of his volunteer time reading patents, or depend on others to do it for him -- others who *could* be using their time working for their big company, e.g. IBM, testing the software, etc.). > I do not wish to debate here the virtue of the monopoly so much as to > point out that Craig is not "merely" proposing a parallel system that > provides the same benefits in a different way. It appears instead that > his proposal would provide no further devlopments, and would undercut the > former. Nevertheless, the proposal is intersting, and perhaps a more > refined version of it might address the complex competing policies we > would all wish to promote. IMO I think it needs lots more refinement than that -- perhaps just tossing it out would be best. The only efficient alternative becomes eliminating software patents entirely. Then again, patents are useful only when implemented in a useful way, so perhaps it isn't a feasible tactic to release trivial free-software programs to "attack" a competitors' software patents, as long as the patents still hold for non-free software (which must be the issue anyway, else why the attack?). > Craig here argues that "Patents are Bad," that in the absence of all IP > protection, software will nevertheless be created, and people will > continue to invent. I think history proved otherwise, showing that > nations with strong IP have been substantially more inventive and > substantially stronger in most meaningful areas of technology than those > which have not. Or that nations that are substantially stronger in technology also end up with substantially stronger, more intricate laws, and smarter lawyers. :) Clearly software gets created without software patents, because I've never seen a case where software patents have been even remotely involved in the authoring of software in *any* important way. Since 1991, when I was debating this issue with those who felt software patents were wonderful and we couldn't get along without them, I've heard of *no* cases where software patents enabled the funding of free software, or even non-free software, but several cases of them making *new* (versions of) free software more difficult to develop have since occurred. (E.g. bzip2.) > The issue is whether before-the-invention-is-invented, resources will be > dedicated to making the invention -- or to making improvements on the > invention. It is not whether software that is made by others for me to > have for free is a good thing, but whether the software not yet invented > would ever have been made. That really cannot be the issue with software in general, unless it happens in areas of the industry I've never remotely encountered, and happens among people who can *predict* which patents will and won't be granted. Admittedly, the myth of the "rare software patent" posted in favor of them around 1991 seems to have been just that, but... ...do you actually know *anybody* who has funded *true* R&D based on the granting, and subsequent planned receipts of license fees, of software patents? How many? How did they know whether their patent applications would be approved, and in how timely a fashion, or did they just scattershot and figure N% would be approved, relying on the threat of litigation to cover enough in fees later on to bring in the ROI? Compare that to how many cases you know of where people have *lost* time, money, and businesses due to being on the wrong end of infringement lawsuits. It just seems too much like a lottery for people to depend upon to *fund* R&D, but obviously, having spun the wheel with excess cash and gotten "lucky", more than a few people have been willing to use the winnings to *eliminate* competitive R&D, or at least competitive products, from the market -- including attacking free-software products like X. (Just like, on the trademark side, some guy "spun the wheel" on the Linux name, tried to profit off of it at the expense of the free-software community, and lost -- but not nearly as much as he should have, given that he basically committed fraud, as I understand it, on the application by representing the name as his own. Take enough risks like that, with no real downside except an application fee here and there, and You Could Be A Winner...or so might too many people think, once free software becomes "de riguer" in some areas.) > Craig spends much energy distinguishing his g77 compiler from commercial > compilers and the impact software patents had on his completion of his > compiler. I am curious what software patents, if any, were so threatening > as to meaningfully preclude its completion? Where any actually > threatened? (I propose discussing the specific patents as examples of > both his and our previous discussions). I was surprised to hear that > there were issues, as most compiler technology, particularly for > "traditional" programming languages, are very well-understood and > particularly well-documented in the literature. Indeed, I didn't see how > software patents implicated this at all -- and would be very interested to > hear the details. At the time, it was clear the PTO hadn't a clue about existing standards and practices in the software industry. My concern was that I'd be sued over the approach I took to, say, resolve lexical ambiguities, or store information on symbols. Register coloring was an example that wouldn't have applied to me, since I wasn't undertaking that part of the compiler -- but those who did, *did* worry about it, IIRC. (I think that patent has since expired, though.) My views have not changed on software patents over the past 8 or so years. Further, my *information* on how they're actually "going" hasn't changed much, because I haven't paid much attention -- they're not really on the "radar" much these days, especially since the demise of the LPF, though how that might be related I can't say. So I don't know that the threat is greater or lesser, other than to say I think free software has come a long way in terms of being a target in the past 8 years, and have heard of only a few recent cases of software patents doing bad things. But, my point was: free software shows that developing software need *not* be expensive enough to define software patents as an "affordable" expense in the process. And, during the past 8 years, I've yet to see *one* post or claim that a software patent application was part of up-front funding to fund free-software development. It's tempting to conclude that free-software developers are just clueless, but so many of them, like myself, just do (as a "hobby") what they do full-time (in my case, on occasional contract, or part-time) for proprietary developers. So, since *I* haven't observed any such up-front funding of patentable materials to fund R&D, and since no free-software people seem to be using that tactic, despite (as either you or Karsten pointed out) the example of the GPL using copyright to get around copyright law... ...it seems reasonable to conclude that the predicted *positive* effects of software patents on software development have not come about. Otherwise we'd have seen all sorts of success stories, right? So, since 8 years ago, I've seen only a few negatives, no positives, no *evidence* of positives -- other than claims just like the ones made 8 years ago -- not nearly enough to change, or sigificantly solidify, my views on software patents. What *has* changed a bit is the likelihood of NC-type computing predominating, which is why I think there might be a legitimate need for software patents in the near future, at least to cover some areas. But it doesn't seem likely it'll be *enough* of a need to justify the whole system applying to software, offhand, though if people ever start posting *real* examples of how up-front funding of patent applications enabled much larger up- front funding of R&D into *software* techniques that otherwise wouldn't likely have been gotten ahold of, then maybe minds like mine will change. (I happen to think that NC-type computing offers fairly substantial disadvantages, and free-software-based computing similarly substantial positives, on the technical side, so I'm not really expecting things to go in the just-keep-unpublished-software-on- our-server direction anytime soon enough to make preserving software patents appropriate on that basis. But, I could be wrong, and it'd be silly to ignore that possibility just to be able to claim software patents could never be beneficial -- in theory, if we had fulfilled Kerrey's [sic?] original vision, and each had a *terminal*, but not a computer, in our homes, connected to one of several huge servers, software patents might be the only way to encourage publication of the pertinent inventions. Instead, we have bazillions of PCs, and an increasing body of source code.) In the meantime, as I've said, all I've really seen are negatives, and no positives. -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 08:24:44 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D3053C.99576407@ieee.org> References: <m3soj1oh67.fsf@kiteless.dyn.ml.org> <6qsj3r$1k01@bugsbunny.matrox.com> <werdna-1208981048130001@tstpa2-11.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 21 Decklin Foster wrote: > > "Ryan Drake" <rdrake@dont.spam.matrox.com> writes: > > > Just my two cents... I'm sure glad no one was able to patent "Calculus" or > > "Physics". If that were the case we'd probably still be driving around in > > horse-drawn carriages... > > If either were invented today, they could be. This is of course incorrect. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 08:33:15 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D3073B.E2FD39AB@ieee.org> References: <6qt7eh$dvo$1@jaka.ece.uiuc.edu> <werdna-1208981048130001@tstpa2-11.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 54 Steve Peltz wrote: > > There are quite a few patents on various optimization techniques - one that > I've heard of is "register coloring" (I have no idea what it actually is). My memory is that this is an extension of the 3/4 color map problem. Colors are used in register allocation. However, I don't remember for sure. I got involved a couple of years ago writing some compiler patents, and we considered this to be prior art at the time. > I'll give a specific example of a related problem that I have no idea > of what is covered by patents - a combined emulator/translator, such > as DECs x86 emulator for their Alpha machines; given the problem of > efficiently executing code for another processor, there are quite a few > straightforward solutions. Straight emulation is, I would hope, totally > free of liability (but, it could have been patented relatively recently, > as machines fast enough to make emulation a satisfactory solution > have only been affordable within the last 10-15 years; similar to the > backing-store patent, although the idea may have been obvious, a patent > may still have been granted since no one had ever bothered DOING it, since > it wasn't practical due to the existing supporting technology). Statically > translating code has been done (we used a static translator to take > 8080 source code and assemble it for an 8086). Translating without the > source is more difficult, because often data and instructions are mingled > together, but there are several techniques, such as dynamic tracing of > instructions. Dynamic translation (translating on-the-fly and caching the > results for re-use) is another technique. There are all sorts of clever > little things you can do (such as, don't translate a block until it has > been executed at least a certain number of times, as straight emulation is > faster than translation/execution for a single pass). There are register > optimization techniques (especially if the emulated machine has too many > registers to keep in registers on the implementing architecture). ALL of > these are "clever", but all can be easily "invented" by someone working > on the problem. I don't think something is worthy of being patented if, > by sitting 10 programmers down to solve a similar problem, 5 of them > will come up with that same technique. But as Andy points out, definition of the problem is often much of the invention. One of the things that you have to fight with examiners all the time over is their human tendency to look at your problem definition, and from that jump to your conclusion. This is not allowed, if the problem definition is itself novel and nonobviousness. And note that this problem arises across all technologies, and is not limited to software. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 13 Aug 1998 14:03:12 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y6ogtosqsf.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 39 Bruce Hayden <bhayden@ieee.org> writes: > Ryan Drake wrote: > > > > Just my two cents... I'm sure glad no one was able to patent "Calculus" or > > "Physics". If that were the case we'd probably still be driving around in > > horse-drawn carriages... > > First of all, even under today's patent laws, either would be nonstatutory. > More important though, even if they were, the stuff would have entered > the public domain centuries ago. > > Indeed, with the history of Calculus, at least, given the spread of > knowledge at that time, I cannot see that even if it had been patented > (which of course it couldn't be), that any temporary monopoly would have > had nearly zero impact. Even more pertinent, I've read (in debates about software patents!) that Newton actually *did* keep his Calculus secret for years, using it for his own purposes, until he realized somebody else was about to publish similar stuff, which triggered him releasing his, apparently to get more credit. Needless to say, this is an argument in *favor* of patenting entire fields of mathematics, or at least algorithms. Which also makes it a point in favor of recognizing that just because *some* useful inventions might be "lost" without patent protection in a field does not mean patent protection for that field is thus entirely justified. Otherwise we might as well allow *everything* to be subject to patent law, since it's easy enough to come up with an example of something that might have been published (or brought to market) faster with the promise of a monopoly. -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 21 Aug 1998 08:45:28 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35DD33A8.2076DEE6@ix.netcom.com> References: <Exzz6w.1zy@a2e.de> <35D9D5EF.1BEAC6D4@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 152 PILCH Hartmut wrote: > > "Karsten M. Self" <kmself@ix.netcom.com> writes: > Is there a chance of getting rid of software patents altogether? "Snowball's chance in hell" is the vernakular expression here in the States. Trend in IP for the 90s has been increasing, not decreasing, owner-interest for both copyright and patent law. You'd be bucking the trend. Andy Greenberg makes some very convincing arguments that even attempting to liberalize IP via legislative reform would probably have the reverse effect due to the workings of the political process -- the folks who have an interest in stronger IP protections will warp legislation before it's enacted. > >Additionally, Two Worlds is potentially controversial due to the fact > >that it asserts an entitlement to patented IP. This would likely not > > I don't understand this. IP is patented all the time. What is new about > asserting such an entitlement? > > If I understand correctly, "Two Worlds" refers to a world of freely > circulating information, including OSS, vs the material world, in which such > information can be embodied, e.g. as hardware or that kind of quasi hardware > which is produced by compiling, shrink-wrapping, removing source code and > structure information and other crippling mechanisms designed to turn > information into merchandisable "software". I don't think we're on the same wavelength. Craig Burley suggested "Two Worlds of IP protection", one applying to OSS/free software, one applying to proprietary products. Given the justification of patent and copyright in the US Constitution, which says (paraphrased) that to promote the arts and technology, Congress can grant artists and inventors exclusive control over thier works, Craig's interpretation (which many agree with) is that patents exist to serve a greater social good. He suggests that as OSS *is* open and reveals its methods, it ought to have free access to patents, without payment of royalties. This is what I would call an entitlement -- a mandated right to something. The problem is that this essentially says to the person who is providing the thing being entitled "you have no say in whether you want to grant this or not, you have to give it because the law says so". This leads to discontent. Not good. I prefer a system in which the owners of patents can choose to share or not to share. I'd like to create a system which creates very strong incentives to share. But I'd like to leave the option of not sharing available, however costly and/or income-forgoing it might be. > >In the US, music licenses are largely controlled by an organization > >called ASCAP (http://www.ascap.com/). This is a non-govenmental > > In Germany, this is GEMA, in Japan Chosakken Kyoukai, I don't know the URLs. > > Unfortunately this organisation, just like the people in the patent system, > is only interested in enlarging the scope of its claims. It would surprise > me to find anyone there with any understanding of the problems IP creates > for the rest of the world. This is where business organization becomes critical. You want an what keeps them in existance. The trick is to make the things which benefit the organization be the same things which benefit its members, original intent, and stated objectives. It's not an easy thing, and I can already think of a couple of pitfalls the organizational approach would have to work carefully to avoid. This is a real problem, but it exists for any organization. > I can't imagine at the moment how this can work. Why should patent holders > agree to join some voluntary cooperative to surrender their rights? Good question. Because: - They have an interest in OSS as a business opportunity, and have the same risk as OSS developers and vendors do that an OSS product might be killed by a patent infringement claim. Even if they don't own the OSS code, losing a $1 billion market is losing a $1 billion market. If the billion. - Because they are selling products or services based on OSS products and face the prospect of patent infringement liability themselves. Or worse, they're creating a liability for their customers. Patent infringement doesn't just apply to programmers -- vendors and end-users are liable as well. This is why the off-shore development suggestion doesn't work -- even if a program is written outside the US, if it infringes a US patent, the US vendors and users face risk of an infringement case. - Because the organization offers access to other patents at a lower cost, and with less hassle, than would be available independently (members get a discounted rate for non-OSS use of patents). - Because by pooling its patents with the organization, and making them available to OSS, the chance that the OSS community sees the patent as something to be invented around, and obsoleted, is reduced. - Because the organization would also be involved in marketing and collecting royalties on the patent -- reducing administrative overhead for the patent holder. - Because the organization would protect and defend the patent -- pursuing infringing use, and defending validity claims, reducing administrative overhead and legal costs. > >web: http://www.netcom.com/~kmself > >SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html > > Any URLs on your projects or alternative solutions to the SW patent problem? No, you're pretty much looking at it here in the newsgroups. The idea only really hatched in the last week, thought it's been festering for a little over a month. I've forwarded the suggestion formally to several of the powers that be, such as they are, in the Linux community -- ESR, RMS, Linux International, and am waiting to hear from them at this point. If you have any pull or sway with them and like this idea (or you hate it), I'd appreciate the plug (goes for anyone reading this, hint). I'm working on what the organizational structure should be like, what the organization would do, and how to answer questions like the one's you're posing here. I do want to put some thoughts down on a website somewhere, don't believe I'll have much time for it for the next week or so. > -- > Hartmut Pilch <phm@a2e.de> > a2e Language Services Pilch, Wang, Fujita & Co > better communication by virtue of language barriers > http://www.a2e.de/oas/, Tel +49891278960-8 -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 1:11am up 68 days, 22:40, 2 users, load average: 1.38, 1.71, 1.60
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 12 Aug 1998 17:36:00 -0500 From: peltz@jaka.ece.uiuc.edu (Steve Peltz) Message-ID: <6qt5cg$d10$1@jaka.ece.uiuc.edu> References: <werdna-1208980844430001@tstpa2-11.gate.net> <6qq9c4$84n$1@jaka.ece.uiuc.edu> <y6hfzjl48l.fsf@tweedledumb.cygnus.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 38 In article <werdna-1208980844430001@tstpa2-11.gate.net>, Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: >> And the Bingo patent isn't dead, another company was sued recently. > >I would be pleased to know more about this patent. I believe it is 4,378,940, but I can't be positive. Where can I look at the claims on-line (USPTO only allows looking at the abstract). While looking for this, I found some pretty odd ones, in particular 5,727,786 and related patents. From the abstracts, these look like methods of playing a game. I wasn't aware you could patent the rules of a game (such as a variation of poker, or in this case a variation on the rules of bingo). Other bingo-related patents that look bogus (again, just based on the abstract - there could well be SOME claims I wouldn't think are bogus) are 5,718,631, 4,624,462, 4,848,771, 4,475,157, 4,455,025. The problem with a lot of software patents, as I see it, is that the solution is obvious once you decide to solve the problem. For instance, if someone wanted an aid to playing bingo, so they could enter a bunch of cards into their computer and have it check each called number against all the cards and have an alarm indicate if any of the cards had a bingo, then indicate which card had the bingo and read-back the called numbers that make up the bingo - well, stating the need was 90% of determining the entire problem, knowing the game of bingo and what information might be needed to help you play it is another 10%, and any idiot can write the program that does that. Yet, that appears to be the patentable material in more than one of the above cited patents. Given the basic game of bingo, it appears to me that you can not write a computer implementation of that without violating a dozen or more patents. YET, I have proof that such a game had been written, and was being played, on a publically accessed computer system in 1976, and such proof has been offered in defense against one patent (and was, at least initially, rejected by a judge who apparently didn't understand the concept of a time-sharing system vs. a distributed system).
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 23:08:23 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1208982308230001@tstpa2-80.gate.net> References: <6qt5cg$d10$1@jaka.ece.uiuc.edu> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 61 In article <6qt5cg$d10$1@jaka.ece.uiuc.edu>, peltz@jaka.ece.uiuc.edu (Steve Peltz) wrote: *snip stuff on Bingo. Thanks, Steve -- I'll educate myself and get back. > The problem with a lot of software patents, as I see it, is that the > solution is obvious once you decide to solve the problem. Right. Deciding to define and solve a problem can in and of itself be sufficient to make the solution unobvious. You are not permitted to Monday Morning quarterback an invention, that is to use hindsight, in determining obviousness. You construct the bizarre thing -- a person of ordinary skill in the art --, and impart upon that person knowledge of literally every published work in the art, and every published work in "analogous" arts (clearly defining the art is a big deal in determining obviousness). You impart upon that person the knowledge of every public use of anything in the art and anything publicly known in the art, and a whole bunch of other stuff. (You even impart upon the person all secret knowledge the inventor was given by others prior to the invention and everything secret that other persons would have known prior to the invention if they also invented the invention, but beforehand!) Then, if that person could combine his knowledge to get the invention, without using the specification (including the problem definition), you've got him. But you can't combine references without some teaching in the reference suggesting the combination [remember, he's just an ordinarilly skilled hypothetical person.] I described it this casual way to try to impart some of the sense in which legal obviousness differs from the English uses of the word. But be assured, if it was novel to apply software to the problem, that observation by itself can render the invention unobvious. > well, stating the need was 90% of determining > the entire problem, knowing the game of bingo and what information might > be needed to help you play it is another 10%, and any idiot can write the > program that does that. I'll get back to you on that as well. But stating the need might itself have been an important observation. Many great, essential and elegant inventions were precisely that, asking the right question, the answer to which was obvious once the question was properly put. On the other hand, this is not a hard-and-fast rule (what is in the law). After the transistor was disclosed, it wasn't too hard to observe that the thing is just a solid-state-relay, and for a VERY brief while, substituting a transistor for a relay in a particular circuit might have been patentable in its own right. But after a VERY brief time (in the case of the transistor) the substitution becomes an obvious alternative, and hence, merely noting the substitution isn't sufficient to avoid a 103 rejection. I know its not what you wanted to hear, but I hope it helps you to understand some of what is going on. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 13 Aug 1998 16:23:03 -0700 From: jbuck@best.com (Joe Buck) Message-ID: <6qvsgn$7pl$1@shell17.ba.best.com> References: <werdna-1208982308230001@tstpa2-80.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 48 Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: >> The problem with a lot of software patents, as I see it, is that the >> solution is obvious once you decide to solve the problem. > >Right. Deciding to define and solve a problem can in and of itself be >sufficient to make the solution unobvious. I am puzzled by this reasoning. I have decided to solve the problem of playing Bingo on a computer. How can that decision alone make the solution unobvious? >You are not permitted to >Monday Morning quarterback an invention, that is to use hindsight, in >determining obviousness. I am aware that this is how patent law works. But this principle runs counter to the justification for patents: that the inventor trades publishing of the patent for the limited monopoly, and thereby everyone wins. If the publication of the patent is of no value to anyone (because any skilled practitioner assigned the problem would come up with the same solution, and because formulating the problem is of no value either, because it is simply "automate some existing task"), the moral justification for the patent (the one in the US Constitution) doesn't apply. There is a patent for updating the cells of a spreadsheet by doing a topological sort of the data dependencies. However, this is the only correct way of solving the problem, and anyone with a computer science education would solve the problem this way. Thus again, the publication of the patent is of no value, as it teaches nothing. The consequence of the patent is that spreadsheets are slower and cost more than they otherwise would. The public is harmed by this patent. >You construct the bizarre thing -- a person of ordinary skill in the art >--, and impart upon that person knowledge of literally every published >work in the art, and every published work in "analogous" arts (clearly >defining the art is a big deal in determining obviousness). Only in theory. In practice, the patent examiner searches the list of existing patents, and isn't familiar with the literature. S/he sits on the thing for a while, does a keyword search, sends back letters asking for explanations of why the patent isn't the same thing as a dozen irrelevant patents, and eventually grants it or doesn't. -- -- Joe Buck work: jbuck@synopsys.com, otherwise jbuck@welsh-buck.org or jbuck@best.com http://www.welsh-buck.org/
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 21 Aug 1998 01:40:02 -0700 From: tzs@halcyon.com (Tim Smith) Message-ID: <6rjbp2$118$1@52-a-usw.rb1.blv.nwnexus.net> References: <werdna-1508980015430001@tstpa1-34.gate.net> <6r2kt1$s05$1@halcyon.com> <werdna-1208982308230001@tstpa2-80.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 43 Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: >What you do is to construct that hypothetical PHOSITA (person having >ordinary skill in the art), endow him with the statutory knowledge, and >ask whether it would be obvious to him to combine the preexisting art >(absent the problem statement) to get to the patented invention. That's >what you do. If you don't do that, you aren't talking about obviousness >as the term is used in patentability. Do you have a cite for that formulation of the test? That doesn't quite match any test I recall from Professor Chisum's patent course, but I took that a few years ago, and have not kept up with subsequent cases. For concrete discussion, here are software patents that seem obvious to me. 5661665 5659336 5657050 5649222 Those are assigned to Microsoft. I don't want to pick on Microsoft, so here is one that just issued that isn't one of theirs: 5790793 Here is claim 1 of that one: 1. A method of communicating between computers, comprising the steps of: creating a message at a first computer, said message including a reference to a predetermined location; transmitting, by the first computer, said message to a second location; and receiving said message by a computer at the second location; decoding said message by the computer at the second location by retrieving data from the predetermined location, automatically by a single application, without requiring user interaction, into the computer at the second location. --Tim Smith
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 21 Aug 1998 23:44:44 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-2108982344440001@tstpa1-71.gate.net> References: <6rjbp2$118$1@52-a-usw.rb1.blv.nwnexus.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 14 In article <6rjbp2$118$1@52-a-usw.rb1.blv.nwnexus.net>, tzs@halcyon.com (Tim Smith) wrote: > Do you have a cite for that formulation of the test? That doesn't quite > match any test I recall from Professor Chisum's patent course, but I took > that a few years ago, and have not kept up with subsequent cases. 35 U.S.C. s. 103 (read in pari materia with 102) and Graham v. Deere? -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 13 Aug 1998 08:08:46 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y690ktrsmp.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 418 "Karsten M. Self" <kmself@ix.netcom.com> writes: > You've got some good points, many of them well made. I must be slipping. :) > Unlike the designer of a > physical machine, the software engineer has no standard > components. She cannot buy off-the-shelf parts or > sub-assemblies from suppliers. Typically, a programmer > writes every line of code afresh, no matter how large the > program is, or how common its tasks. Nice, but not entirely true, and the real problem will show up early next century: when the code is no longer imperative, or if it "looks" that way and is just reverse-engineered into higher-level abstractions, then the *computer* (think "compiler" if you have to) chooses the algorithms to apply. Which means the *computer* violates a patent of some algorithm applied to some field. But of course, computers can't violate patents -- only people can, either the people who tell the computer about the problem to solve, or the ones who taught the computer to be that smart, or the ones who sold the computer. *None* of whom have *any* fair opportunity to even realize they've "invented" the patented "process". That's what bugs me about, e.g. the "backing store" patent. As a patent on an interface design it's perhaps conceivably useful (though not to publish, since the interface is published). But, as a patent on "gee, we're so smart, we figured out this new way to save time", it's laughable. Because, *any* computing engine, given the overall problem -- which is that a "continuous" function of some degree of complexity takes some inputs and produces some outputs -- could have reasoned "hmm, given that the inputs often remain the same over time, and the outputs can be small in size compared to the complexity of the function, let's save the outputs even when they're temporarily not needed". So the problem with the "classic" view of what software "is" will inevitably lead to John Q. Public "violating" patents by daring to combine his favorite interface with his favorite spreadsheet, because his computer then picks a bunch of algorithms that, voila, violate patents. To avoid this, we have to avoid designing intelligent software. Period. Copyright, on the other hand, seems much further away from the point where this'll become a large-scale problem, because it isn't based on a land-mine model; because independent creation is a defense; and maybe other things. > The design space a > programmer must search through to ensure lack of patent infringement is > vast, and prohibitive to many in the OSS community. My impression is that it's prohibitive to most of the software industry in general. I've worked shoulder-to-shoulder with "hardware guys" designing new computers and have seen the differences to get at least a feel for how different software really is, and how quickly it moves (or, put another way, how little patentable "up front" design is done, for good or ill ;-) compared to hardware. > - The patent base is still growing -- floodgates have opened ever wider > since 1990. Critical mass has not yet occurred. Well...and the whole industry is burgeoning so quickly, etc. It's really silly to waste any time trying to profit off of a few software patents these days -- one can make so much more money doing Real Work. It's the few who try and become annoying I'm worried about *now*, and it's the future when the industry isn't quite so "paved with gold" and larger portions of it "shrink-wrap" around the software- patent possibilities that I'm also worried about. That's why I feel, in the long run, it'll all be taken care of. E.g. just like the guy who trademarked "Linux" got "taken care of". Again, though, he was on vastly shakier legal ground -- think what just ten guys like that holding software patents that are really useful only against OS authors like myself might be able to do, and remember, it's our *personal* fortunes, not those of people using names like "Linux" in print, that are at stake! In other words, yes, patent, like copyright, is all IP law, but the risks and costs of unknowingly violating patents are *much* higher than with copyright. > The Open Source Patent Patron Solution It's nice, but one negative is the same one I see already happening with the justification of software patents -- once implemented, it'll rapidly become a justification for how "important" the software-patent and proprietary-software industry is for OSS to survive. Which gets back to my point, being, why do we *need* this massive beauracracy on top of this other massive government- sponsored beauracracy? I mean, other than to enrich the few people well-positioned to benefit from it, but not as those who actually forward the technology? It's a value judgement I feel is clearly in favor of chemical-process patents, but almost certainly *not* favorable for software patents. Does *anybody* really believe software patents, even adding the OSPPS you propose, leads to a globally optimal solution? Put another way: scientists studying flora and fauna seem to have little trouble distinguishing forms that simply leech off of other forms from those that engage in mutually beneficial relationships, but I see plenty of tendency among humans to view any human activity that seems potentially "leech-like" as if it were mutually beneficial, using the line of reasoning that the larger activity is "doing fine" and hence would only be *worse* off otherwise. So, right now, we're seeing implications posted that, without software patents, products (other than g77) wouldn't exist. But, strangely, as long as I've worked in the industry, including doing contracts, software patents *never* enter into the equation except as either "feathers in a cap" (not seriously pursued) or for defensive reasons (more seriously pursued, but not reliable for the purpose). Since I believe patents themselves are *important* to ensure publication, it's just the areas to which they are applied that I question, based on whether their value changes from "net good" to "net bad", or basically leech-like. So I question whether patent protection should be granted to software, while I don't really when it comes to chemical ("matter-transforming" is my wording) processes. I also question the applicability to genetic codings, but don't know enough about that field to really get into it. (With some awareness of some similarities to neural-net research in software, I have about as much faith in patent suitability for "voila, we finally selected a working gene via repeated random selection" as I do in "voila, after running the neural-net software, we finally got a net that solves X". Either way, I don't quite see that we need so much protection for the result of giving a big computer a lot of time and memory to work out a problem...but when somebody truly "codes up" DNA from scratch, knowing ahead of time how it'll work, then they're writing software, IMO, and perhaps copyright, though still not patent, protection should apply.) > Probably true. But the businesses which have survived and/or thrived on > account of their IP being protected are much less dramatic. Imagine > what the newspaper would read like if "live notices" were published > rather than just the obits of those who'd died recently. Andy will > hammer you one this, I'm just beating his punch. It'd help if I'd *ever* run into this myself. It's amazing how much this supposedly happens, when I never see it happening, despite having done plenty of proprietary work, involving clearly patentable subject matter. So, you can imagine how my mind boggles at the thought of software- patenting becoming as widespread as software-*copyrighting* such that every programmer was aware of it. Think of what that'd do to the lead times on patent applications; cross-licensing; and so on. IMO, it'd destroy the OS (open-source) community in short order, unless widespread legal relief was provided. The *big* advantage I see to this whole system is that it throws the door wide open to any third-world countries wanting to leapfrog the West (by which I really mean the countries signed onto the various IP protection schemes we use, via treaties). While we're busy scouring every line of code we write for patentability, and every line everyone else writes for infringement, they'll learn to just Write The Doggone Code, release it, and perhaps end up doing to our software industry what the Japanese did to our auto industry in the '70s. (Only I think we'll have much less of leg to stand on, economically speaking, given the fluidity of software development compared to automobile design and production.) > There is a substantial body of literature suggesting that various forms > of IP are neutral or even net harmful in their social impacts. One of > the more interesting such is a 1970 Harvard Law Review paper "The Uneasy > Case for Copyright". Though it principally covers printed media, it > also discusses computer software, and patent protection of software, > finding the prospects of both (neither were then statutory or > commonplace) disquieting. The author is Steven Breyer. His current job > is Associate Justice, U.S. Supreme Court. This is a good one to > brandish when the "lunatic fringe" label is lobbed at you <g>. I'll > attach a list of economics papers I've turned up online at the end of > this post, if you're interested in more studies. Interestingly, I > haven't found any economic research suggesting copyright/patent are > insufficient or necessary. I find arguments that software is unique as copyrightable material quite interesting. I just haven't gotten *close* to having enough data to make up my mind. So I challenge "rock-solid" assumptions people make, as I do about how software patents can't really be a drag on the industry. I've seen others do this a few times on this thread vis-a-vis software copyright, which is among many reasons I've skipped doing so myself. > > > One way to get lawyers interested is to stop bashing them and the system > > > they address; particularly since the chances of changing the law as > > > applied is virtually nil. > > > > Isn't it amazing how lawyers are always the ones who get to *make* > > the laws, then afterwards claim "well, you can't change the laws, > > so don't bother trying -- just make friends with *us* and maybe > > we won't charge so much for you to conduct business in this > > environment"? > > Craig, he's got a point. He's not necessarily the enemy either. And if > you can find a solution that guarantees him a paycheck or billable > hours, you might even get yourself some good counsel. Right, I know that -- I've already talked to a lawyer about some related issues, because I've got some long-term strategies to deal with this and other problems. My point is that this whole system becomes self-fulfilling, and I'm simply not going to be impressed when somebody says, in effect, "don't say the emporer has no clothes, just keep paying us for telling him how nice he looks in them". Remember my entry into this thread: a *very* short post pointing out that the Forbes article on free software could be a useful data point vis-a-vis the theory that software patents can't really slow down an industry that takes tons of resources to produce the typical large program. That was met with, paraphrased, "but the *imputed* value of that free-software work is very high", at which point I decided to explain that the software patent system, and lawyers in general, don't take payment in imputed value. (I should have said it that succinctly back then. :) > The simple truth is that though the lawyers write the law, they're the > lapdogs of the current economic interests. The current economic > interests are an established technology and proprietary software > industry which is the current industrial engine of the mightiest economy > on the planet. It's not the lawyers, it's Microsoft. It's also IBM, > Sun, Intel, SAS, Oracle, whatever Borland is calling themselves this > week, etc. When he's not beating us up here, Andy does what he's paid > to do (when I'm not taking his punches, and occasionally giving back, so > do I -- programmers are just less-well-dressed lapdogs). You know, the current economic interests probably want me to design advanced weapons systems that can wipe out nations, rioters, people of certain races, whatever. Instead, I choose to do what I feel is "most right", a combination of globally optimal economic and market behavior and personal moral convictions. So, you have to pardon me when I responded unfavorably to someone saying "just accept the system as is, and pay us to help you cope with it -- oh, sorry if you can't afford to while you're making the world a better place, as we have different objectives than you". It's not so much that they're *wrong* -- I just want it to be clear, more and more, that that's the decision *they're* making, and that it's the ultimate reasoning behind their values. In particular, I believe it's worthwhile to challenge this notion (which I find entirely unsupportable in my experience) that software patents are in any way crucial for the burgeoning software industry to survive or to flourish. As a programmer, you'd *think* I'd be taken seriously on this; even as a barely-wannabe CPU hardware designer, I have *no problem* seeing the usefulness of patents in that area. If, in the meantime, I can challenge one or two individuals to ask themselves why they're simply going with the "corporate revenue stream" to guide their public discourse on any issue, fine. Doesn't matter if I change their minds, as long as they might *think* about it. I've changed minds before on some pretty intransigent issues (based on emails I've gotten), which is kinda scary in a way. > The law hasn't changed (much) since software copyright was instituted in > 1980. The court's interpretation of what protections are granted by the > law has changed considerably. The interest in SW patent is in large > part a response by the SW industry to the increasingly apparent weakness > of IP protection yielded by copyright as the result of several key court > decisions (noteably, CA v. Altai, Lotus v. Borland). That's what I was getting at, with less precision. It doesn't matter *much* whether the law changes, or the interpretations change. Ask me, and you'll hear a much more "Borkian" view about it -- I have this peculiar notion that the courts should provide only a strict interpretation of the existing law, and IMO this should err in the direction of *less* interference in peoples' lives. (Don't think I'm saying this makes judicial work any easier. About all it does is make people think a bit more about whether, and for whom, to vote, since they can influence legislatures. Instead, these days, they just watch Oprah, yell a lot, and hope judges and juries "hear" them somehow...though that does seems to work pretty well. :) Anyway, if effective copyright for software has been weakening lately, then why can't effective patent law for software do so? *I* don't remember voting for *increased* software patentability -- about the closest I came to that was voting for Reagan (twice, but IIRC the first one did the trick on this issue). So, the PTO and the courts "adjust" their behavior, largely ignoring the role of the legislature(s) to set the rules so we can all participate in this process up front. Not ideal; but I don't see why software-patent law can't "take a hit" in the future, as the result of all sorts of things, including discussions like this. (Years ago, I was told "don't bother talking about the viability of free software, such as GNU, because your talking won't help". Well, *something* helped, and I've had people tell me via email how much my posts inspired them to adopt, if not contribute to, things like GNU or Linux.) > Salient. I think Andy's badgering you a bit much on the distinctions > between OSS and the SW industry as a whole. It might be the result of > his having less clouded vision. I rather suspect though that he's a > behind the curve on really understanding what OSS is about in terms of a > SW development and an economic model, but he's sharp and might catch on > soon <g>. When companies like Netscape and IBM step up to bat with OSS > products, it becomes much harder to draw a distinction between "OSS" on > the one hand and "the SW industry" on the other -- they are becoming one > and the same, and will become more so. Thanks, that was indeed my original point by pointing to the Forbes article. Part of my problem is that I've had a vision about software (and other types of) engineering for nearly 30 years now. The free- software paradigm was a crucial answer to a very tough question, though not necessarily the only one (however, it *is* almost certainly the least expensive, globally). So, for nearly 30 years, I've understood how unlike today's software- development paradigm the paradigm of, e.g., the decade starting around 2020 is likely to be. Especially since my "education", properly, is poor, yet my pie-in-the-sky leaps even from my early days are being (somewhat slowly, I admit) fumbled, sometimes leapt, towards by the industry. The things I've been bad at predicting have involved *underestimating* how small, and ubiquitous, machines can be -- e.g. I envisioned something in many ways much more ambitious, yet more hardware-feasible, tolerant, and reliable than today's Internet back around 1975, but that *didn't* include things like streaming video or even interactive global conversations a la IRC, because I didn't envision the necessary hardware or bandwidth (though my vision certainly *accommodated* both, natch). I can certainly excuse people not seeing my particular vision, and am interested in theirs. But to see someone say "well, the software industry works *this* way; working this way is so expensive that the software patent system isn't much of a hindrance; therefore software patents are not a hindrance" is something I have to respond to, especially when the evidence is *already* in that the software industry does *not* entirely work "this way", and software patents already *have* been a hindrance (compress, GIF, and so on). In the end, software patents are valid *only* if they serve the goals of the software industry and the community at large. I see *no* evidence of this substantial enough to counteract the substantial evidence of its hindrances to date, and plenty of reason to expect the hindrances, but not the "helps", to grow. > Andy: any equivalent of IP covering portions of legal practice? Other > than trade secrecy, say analog to copyright or patent? IIRC, there are some interesting analogies that might be found to software *copyright* versus legal-citation copyright (IP), e.g. West Publishing. It's been year since I was even remotely close to being "up" on this. > <histrionics> don't dismiss me *that* easily!!! I put at least five > minutes into that idea!!! Yes, it's a good one, and what might actually happen. I think there might be more "defense by the people" available than would make your scenario necessary, and as I suggested above, I'd rather see *that*, so "the people", rather than "the big corporations with help from software patents" able to take credit for any and all future success of OSS. > The irony is that the GPL *requires* copyright to work -- the legal > rights granted copyright owners under the law are the mechanism which > drives GPL. In the same way, instead of looking for a way to break down > patent law, we should look for a mechanism which twists it to suit our > own purposes. I agree with that reasoning. If I could apply for a software patent as easily, and get it approved as reliably, and be sure it'd defend me against litigation as surely, as is the case for software copyright, we wouldn't be having this discussion! > I'll take a wild swing at it and say that Andy's remark "Karsten has put > his finger" indicates at that the idea has passed a basic plausiblity > test -- he hasn't replied directly to me. I think it's damned crazy > myself, but it's crazy good, and maybe enough to work. Well, you outlined the pitfalls, the Things That Need Doing to make it work. What's to argue? Put up or shut up, I say to anyone who wants to do anything about it. :) > Those economic studies (and a few other misc. papers): Thanks. I certainly need to do a lot more reading before I start telling anyone I know all about software patents. I hope I haven't come off as if I felt I did -- mostly I was trying to post from personal experience, OSS experience, and awareness of some of the principles of patent law that I've read up on many years ago. -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Terry Ritter, his current address, and his top page.
Last updated: 1999-02-20