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Debian, SFLC Publish Patent Advice For Community Distros

timothy posted more than 2 years ago | from the in-short-just-say-no dept.

Debian 63

An anonymous reader writes "The Debian Project is pleased to announce the availability of the Community Distribution Patent Policy FAQ, a document meant to educate Free Software developers, and especially distribution editors, about software patent risks. The FAQ has been prepared by lawyers at Software Freedom Law Center (SFLC) at the request of and with input from the Debian Project. While the document does not constitute legal advice, it provides insights on dealing with software patents, which might be applicable to other community-driven Free Software distributions. The Debian Project maintains a critical stance towards software patents: we consider software patents a threat to Free Software and we believe they provide no advantages in promoting software innovation."

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63 comments

In the year 2000. (-1)

Anonymous Coward | more than 2 years ago | (#36709494)

GNU/Linux distributions will be source-only.

Help us Gentoo, you're our only hope.

What's wrong with software patents? (5, Insightful)

Anonymous Coward | more than 2 years ago | (#36709508)

The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

This applies just as much to software as to physical objects. Suppose I came up with a method to dramatically increase a car's gas mileage. What's the difference if the method is a change in the physical structure of the engine or an improved algorithm in the car's software? The same logic applies: if my method is not protectable by patent law, I lack economic incentive to put the necessary time and effort into developing the invention.

I understand (and agree with) arguments that the patent time should be less for software, that the thresholds for patentability and enforcement are far too low, and that the whole system in general is being abused and needs major changes.

But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

Re:What's wrong with software patents? (0)

Anonymous Coward | more than 2 years ago | (#36709538)

Why should they even be copyrightable?

Re:What's wrong with software patents? (1)

Anonymous Coward | more than 2 years ago | (#36709548)

For the same reason that Patents in the Air Plane field were bought up by the US gov't for WWI (REF #1) and given into a state controlled pool. Also the same reason Ben Franklin refused to patent the lightening rod.

Because it is for the betterment of society, and for the nation as a whole. Without the airplane patents being essentially null/void the US would have had no manufacturing of airplanes b/c of "patent nuclear war" and I can't find links to it now, but Economists have said that is one of the leading reasons why the US became such a powerhouse in aeronautics until the 70s (when the patent system changed again) because there was no patents. And with Ben Franklin he was already wealthy enough (from his printing/news companies) and didn't want the new lightening rods from being hampered by patents and preventing them from being adopted as standard use around the nation/world... because he wanted to save lives.

So Software shouldn't be under patents because of the same reasons above... allow everyone to work on a still(comparatively) new technology, and allow it to save lives (This isn't Hyperbole, Look at pace maker software, Or Nuclear Control Software as areas where software is real life/death)

PS: The US government is not bound by either Patents or Copyright (little known loophole, which I wish was used more often)
PPS: Because Software is nothing more than an algorithm, and by US law, algorithms are not preventable (though that has been stretched recently... but was the original intent of the law)
PPPS: Because an algorithm is reducible to its basic mathematical formula. Mathematical formulas are also not preventable (I'm not sure if this has been bribed into change yet or not) (Ignoring the RSA algorithm was illegal until the late 90s? That is a whole separate issue, when encryption was considered an "arm"(weapon))

REF #1 http://www.cptech.org/cm/maa.html

Re:What's wrong with software patents? (3, Insightful)

Lanteran (1883836) | more than 2 years ago | (#36709556)

Patenting software is more akin to patenting, say, plot elements in a book than actual physical inventions. Copyright is all that should apply to software. Besides being incredibly stifling with such long lifetimes in terms of software, they are overly broad, usually incredibly obvious, and almost never provide the information to replicate what is described in the patent. I think the book analogy is a good one, so I'll go with it. What if someone patented, say, the scifi or fantasy generas, plot elements, etc.? It'd be nearly impossible to write a book, regardless of whether you had the ideas independently or not. Besides my issues with copyright term, I've got no problem with copyright alone applying to software- you can protect the code you wrote, while not being able to sue someone who independently came up with similar code.

Re:What's wrong with software patents? (1)

Anzhr (1132621) | more than 2 years ago | (#36709994)

"Patenting software is more akin to patenting, say, plot elements in a book than actual physical inventions. " Excellent analogy.

Re:What's wrong with software patents? (1)

Howitzer86 (964585) | more than 2 years ago | (#36712412)

Agreed... it wouldn't be impossible to write a book though. If you're an author, you'll be required to license the plot elements and sued into poverty if you don't comply.

At the end of the day, if you write software, you will violate a patent. But it's not all bad. Most companies won't care to go after you because it wouldn't be cost effective. But at some point, you'll make enough money. When you do, most companies will ask you to license their ideas. If you can't afford the license and you don't halt all distribution and sales of your product, they will take you to a court in Texas and win. The legal system will put an injunction on your product. If it's your only product, your business is finished.

It's definitely a wrong and corrupt system designed to benefit stagnant large corporations rather than innovative small businesses. As long as it exists it will be fought against, but until then, you have no choice but to participate in it. Unfortunately, while your participation might guarantee material success, by the time your business is large enough to influence anything, it'll have invested millions into its own patent portfolio. As a result, it'll be unwilling to change anything, just as willing to license/sue future violators, and possibly even desperate enough to hire lobbyists to keep things they way they are.

Re:What's wrong with software patents? (1)

uninformedLuddite (1334899) | more than 2 years ago | (#36729356)

I would like to patent anything containing IF.....THEN.....ELSE or should I be saying I would like to patent everything.

Re:What's wrong with software patents? (1)

Lanteran (1883836) | more than 2 years ago | (#36709574)

Also, I don't believe math is patentable as per the algorithm in your example. You can keep the discovery a trade secret of course, but you cannot patent math.

Re:What's wrong with software patents? (0)

Anonymous Coward | more than 2 years ago | (#36709640)

you cannot patent math

why shouldn't math be patentable?

Re:What's wrong with software patents? (1)

Anonymous Coward | more than 2 years ago | (#36709672)

Because it's a team effort between mathematicians all over the world over centuries and it would be absurd for one to be able to patent it (also, mathematical laws are discovered, not invented). Maybe a "mathematician's guild" could have a case, but even that is silly.

I don't know where this "genius invents stuff" idea comes from but it isn't true.
Without the giants we are nothing.

Re:What's wrong with software patents? (2)

Teun (17872) | more than 2 years ago | (#36709852)

(also, mathematical laws are discovered, not invented).

For the same reason we should strongly reject patents on DNA of natural occurring organisms.

Re:What's wrong with software patents? (2)

rtfa-troll (1340807) | more than 2 years ago | (#36709786)

Your question is becoming badly formed. The natural state of things is not that everything is patented and then we get a certain set of things which we are allowed to do because they have already been patented and the patent has lapsed. The natural state of things should be that people are free to do what they want. The first question you should answer is:

why should anything be patentable?

and then

why should mathematics be patentable?

and next

why should this particular bit of mathematics I have in front of me be patentable?

and finally

why does the value of patenting this mathematics outweigh the freedom of millions of other people to use it without patents?

if you can't give a clear and convincing argument, then you are interfering with other people's freedom with no justification. If there was no patent they would be able to do something. With the patent you are stopping them from doing that.

Re:What's wrong with software patents? (4, Insightful)

martin-boundary (547041) | more than 2 years ago | (#36709698)

The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

No, the basic idea is not sound at all. It's a repugnant form of thought control. The problem is that someone on the other side of the country can pay the government to stop you personally from freely practicing the thoughts in your head. Worse, you don't know that you're infringing until you get sued, and then you're guilty even though it was entirely your own idea. Patents are antithetical to the ideals of a free society: The only guaranteed safe way of not being attacked by patent trolls is to never think up anything that might even remotely be considered novel.

There are plenty of ways that patent systems could be reformed into something less damaging to society, but as it stands, the system is pure evil.

Re:What's wrong with software patents? (1)

Qzukk (229616) | more than 2 years ago | (#36710084)

never think up anything that might even remotely be considered novel.

Worse, you have to never think up anything that some government employee didn't think was novel.

Re:What's wrong with software patents? (0)

Hal_Porter (817932) | more than 2 years ago | (#36712914)

This is presuming that minor parties are somehow immune to voters, which I do not agree with. They can get voted out just as well as anyone else. In fact they tend to be seen as a softer target who can be attacked and blamed for compromises made to form government.

This is a classic slashdot post. It is also complete bollocks.

The patent system doesn't stop people thinking ideas. What it does mean is that if you profit from those ideas the patent holder can ask you to pay a license.

And there's a reason for that - it means that the people that have the ideas can make money without having to buy a factory. Or, conversely, that people that own factories have to pay the inventor of things they make. Otherwise the people that owned the factories would not need to. More to the point there'd be no incentive for inventors.

The SFLC is just spreading FUD quite frankly. In fact the very name SFLC - a reference to the Southern Poverty Law Centre is offensive. The idea that people making Linux distributions are in any way comparable to the people that risks life and limb defending civil rights is absurd.

Re:What's wrong with software patents? (1)

makomk (752139) | more than 2 years ago | (#36713280)

Except you're wrong about two rather important things. Firstly, there's no requirement to grant a patent license - the patent owner can refuse to license their ideas at any cost and get an injunction stopping you from using them. Secondly, it doesn't matter whether you're profitting or not, because there's no exception for personal use or research - even if the only thing you're using the ideas for is satisfying your own curiousity it's still patent infringement.

Re:What's wrong with software patents? (2)

marcello_dl (667940) | more than 2 years ago | (#36709704)

You're looking at an irrelevant aspect, virtual vs physical.

If the patent office awards someone the invention of the hammer or the double linked list, the problems are exactly the same: prior art, banal invention that somebody else would eventually have come up with. The virtuality of the object is not relevant there.

The physical object has an advantage in providing boundaries for useful patenting when it's required to make and submit a working prototype, that's a tangential issue.

Re:What's wrong with software patents? (1)

Anonymous Coward | more than 2 years ago | (#36709730)

No, the basic idea behind the patent system is not sound. What the deal is supposed to be is that in return for an exclusive right for a limited time, inventions which would otherwise be kept secret or lost, get documented in the patent. That is supposed to promote the progress of science and the useful arts. The key metric to measure the patent system is to ask whether it promotes progress. Whether or not it "protects" inventors from something or other, is irrelevant. Hundreds of years of experience has indicated that the patent system does not promote progress. There are numerous studies by economists explaining what is wrong with the patent system. It does not work for its assigned purpose. It is a failure.

If something costs more than its benefit then stop doing it. The patent system has a vast and rapidly rising cost. Its actual benefits are evanescent at best. It simply does not work. The theory and the practice are wildly different. That means the theory is wrong. Economists have extensively investigated the practice and have found it wanting. The theory is incessantly shouted out by the patent bar. The patent system is a conspiracy by the patent bar against the rest of us.

Americans, you are warned that there are other places in the world (think China) where the patent system is not allowed to vandalize the economy.

Re:What's wrong with software patents? (0)

Anonymous Coward | more than 2 years ago | (#36709752)

The software industry grew big without depending on patents. Apparently there were other economic incentives.

The example you give is software that has an effect on an engine, a physical thing. That is often seen as a different category as pure software. But even then, do you really think a car manufacturer would lack incentives to make their engines more fuel efficient if the market asks for it and the competition is doing it too?

And how sound is the basic idea behind the patent system really? In the US the invention should be non-obvious to a "person having ordinary skill in the art". That is quite a low threshold. It might work when there are just a handful of people actually inventing new things, but there are huge amounts of people who develop software. If just 2% of them think an idea is obvious then the idea will spread anyway, you don't need patent protection for that. A patent will hinder the spreading in a situation like this.

Re:What's wrong with software patents? (4, Interesting)

rtfa-troll (1340807) | more than 2 years ago | (#36709758)

But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

There are lots of clear rational arguments against software patents

Freedom of speech;

Software source code is a form of Speech; it is a method of communication from one programmer to another about mathematical concepts and their usage. Free software, in particular (though probably not most "Open Source" software) is often political speech. As such, under the UN Convention on Human Rights, the European Convention on Human Rights and the Constitution of the USA, it is the most highly protected form of free speech. Software patents attempt to interfere with that and are clearly criminal.

mathematics / algorithms

A program is; simply; a large integer. Running a program is, exactly running a series of mathematical operations on that large integer. Mathematics is explicitly recognised as non patentable in most patent regimes.

A similar argument can be stated in terms of algorithms. Software patents always claim a "method and aparatus". The reason for this that a pure algorithm is recognized as not patentable, only things with

the nature of software development

Software is developed differently from bridges electronics and other areas of physical engineering. In other areas we much more start with a design, apply known techniques and get to a given end. New forms of bridges come out of separate explicit research where prototypes are built and actual work is done separately from the development process. This means that advances come more slowly and explicitly from research to development. In software, every new software development effort includes and should include new ideas explicitly. Once these ideas are developed it is very easy to package them up into libraries and make them available. The same ideas are re-invented repeatedly. At the same time, it is almost unheard of for a software developer to benefit from reading a software patent. Finally, a bridge builder will probably take days or weeks to consider a single idea. A programmer will probably use a hundred patentable ideas in a single day. The only reason that the programmer is able to work at all is that software patents are a new idea so 99.9% of those ideas will already have been used by someone else. In other areas, a patent search taking several days may be done for every new idea.

  • there is no need for patents because ideas are continually re-invented;
  • software ideas are cheap; the loss of one single new idea is not a big worry
  • patents do not provide the benefit they should to the software development process.
  • software can be developed by home developers who can't afford patent lawyers.
  • the cost of patents to software development is much higher than to other areas
  • handling software patents properly would need 1000 lawyers for every programmer

I'm not nearly the first person to put these forward. If you haven't heard them before, then you might want to have a look at Groklaw [groklaw.net], the league for programming freedom [progfree.org]. There is a long list of reasons given on the end software patents web site [swpat.org].

Re:What's wrong with software patents? (1)

mfwitten (1906728) | more than 2 years ago | (#36711988)

Everything in this Universe is a manifestation of Mathematics/Logic; everything is just information.

Either patents apply to everything or they apply to nothing.

Re:What's wrong with software patents? (1)

rtfa-troll (1340807) | more than 2 years ago | (#36713270)

Everything in this Universe is a manifestation of Mathematics/Logic; everything is just information.

If you can provide a clear proof of that, I think the Nobel committee has a few things lying around waiting for you.

Even if it were true; it's pretty clear there is currently a legal and practical difference beween on the one hand matter & possessions and on the other information and virtual things. There is no "freedom of possession" which entitles you to have any object you want to have.

Re:What's wrong with software patents? (1)

mfwitten (1906728) | more than 2 years ago | (#36719418)

there is currently a legal and practical difference beween on the one hand matter & possessions and on the other information and virtual things.

What does 'virtual thing' even mean? People are always talking about software as though it's intangible and metaphysical. This is because most people don't understand what's going on; they can't see gears and levers and wheels that can be turned by hand, so they assume that some kind of magic is at work.

There is no fundamental difference between the Newcomen steam engine and Linux's latest execution scheduler.

There is no "freedom of possession" which entitles you to have any object you want to have.

The only thing that gives you the "right of possession" is physical violence. The only reason there is the concept of "right of possession" in the first place is the fact that there are limited resources, which simply means that some information is more easily copied than other information.

In most cases, it's not copying that is at issue, but rather compensation for the arduous task of finding the original, and I think therein lies the solution: Should the inventor of rounded GUI elements be compensated in the same ways as the inventor of the LCD screen? The contemporary patent problem has to do with preposterously disproportionate entitlement.

Re:What's wrong with software patents? (2, Interesting)

Anonymous Coward | more than 2 years ago | (#36709798)

Having been a developer for a small-medium company for 25 years I can only see software patents helping multi-nationals. We have never patented anything and the company would have gone broke long ago if we tried. We simply don't have the resources, Once a multi-national company gets a big enough portfolio it becomes hard for another to sue as they are probably infringing on each other and only the lawyers will end up making much profit. The only exception to this is you patent troll company, We have never needed patents to protect our 'software inventions' but I'm sure with all the ridiculous obvious things that have been able to be patented we would be infringing some. Patents are a big hammer waiting to fall on any small software house should the holders decide.

Re:What's wrong with software patents? (1)

pieterh (196118) | more than 2 years ago | (#36710172)

The basic idea of the patent system is... extraordinarily confused. The arguments about the benefits of monopolies of ideas vs. free trade in knowledge have been going on for at least 150 years if not longer. Let's get one thing clear: software patents are exactly like all other patents in that they control the use of an idea. There is no inherent difference between the patent for a steam engine and the patent for a linked list.

Patents on steam engines held back the industrial revolution by 20 years. Patents on planes almost crippled the US airforce in WWi. All patents are anti-innovative in nature and by definition, because innovation is a collective act. No-one innovates in a vacuum, and the myth of the "lone inventor" is largely propaganda created by the patent industry.

All the conventional arguments for patents (that they promote innovation, help disclosure, protect small inventors, reward investment, etc.) are almost trivially disproven by the large body of historical evidence. Not least in the software industry. You have to be extraordinarily obtuse to maintain any of these arguments as true, without evidence.

What remains as the sole plausible benefit to society is documentation. Yes, patents seriously hurt the transport industry in the early 19th century, but today you can build a working steam engine from patents. Documentation is, plausibly, worth the significant pain that patents cause society.

And it's here that software patents fail completely. No patent is as good as source code, and in the age of Wikipedia we do not need the patent system to bribe busy people to document their work.

Re:What's wrong with software patents? (1)

aurizon (122550) | more than 2 years ago | (#36710444)

When a patent is held by some entity capable to taking it to the broad market it gives that monopoly to someone who will use it - for the time. The Wright brothers had no such ability, although they insisted that they did, and became a block to further use by others(on reasonable terms). The steal patents were held by assorted blocs of large makers who wanted to their side to win and were quite capable to making their own steam ecology.
  What is needed is some law that the maximum amount that all patents can cost a product is - say - 8%. Thus 4 patents used = 2% each, with some mechanism to apportion other percentages as to the value/significance of the patent(independent arbiters, as we all feel our own patent is worth the most).

In addition the Linux community must take the defensive measure of creating new ideas worth a patent and making that application and getting that patent to give some tit-for-tat defences. It makes no sense to think of an idea, and then publish it into the public domain, (even though perfectly patentable) because that throws away your own armor leaving you defenceless against the trolls ( non-makers of goods) or users (Apple, IBM, Nokia et al).

Sadly, the so called patent reform is the creature of people like Apple and IBM, and no true reform will emerge. We will get something like the Disney rule for copyright extension into the (infinite??) future.

Re:What's wrong with software patents? (1)

melikamp (631205) | more than 2 years ago | (#36710888)

The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources.

Bzzzz. On the contrary, there is little incentive to come up with anything novel under the patent regime: big corporations will always find something in your invention or manufacturing process that seems to infringe and simply bleed you to death in court. This is especially true for the most complicated inventions like software and (I imagine) drug cocktails. Without patents, inventors still have the first mover advantage and the trade secrets on their side, and no one can take that away.

Re:What's wrong with software patents? (1)

BlortHorc (305555) | more than 2 years ago | (#36711132)

The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

This applies just as much to software as to physical objects. Suppose I came up with a method to dramatically increase a car's gas mileage. What's the difference if the method is a change in the physical structure of the engine or an improved algorithm in the car's software? The same logic applies: if my method is not protectable by patent law, I lack economic incentive to put the necessary time and effort into developing the invention.

I understand (and agree with) arguments that the patent time should be less for software, that the thresholds for patentability and enforcement are far too low, and that the whole system in general is being abused and needs major changes.

But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

Wow. This has to be the best troll I have seen in years.

And yeah, I know, don't feed them, but +5 insightful? Sheeeeet

Indeed, the basic idea behind the patent system is sound. However, a software patent does not need to provide an actual working solution, all it needs to do is for someone to say: I reckon I could make something like this work. This, as opposed to a physical patent, which needs to describe an actual thing, and how it actually works.

Benefit to society from the "I reckon" patents: virtually non-existant

Re:What's wrong with software patents? (0)

Anonymous Coward | more than 2 years ago | (#36711196)

Physical things might need patents. They have certainly helped with that. Maybe virtual things should be patentable too, I don't know, I have no clue what you mean with virtual things. However, programs definitely shouldn't be patentable. That's just silly. Have you done a lot of programming before? If you're any good at it, you'll know that it's a bit like writing a book or telling a story (admittedly you're telling the story to a highly functioning autist, so you need to make a few allowances) . You figure out what you need to tell the person, and creatively pour that into a single coherent text.

It's very different from making a physical invention where you research and test and experiment. But very similar to what writers do, or even poets! http://docstore.mik.ua/orelly/perl/prog3/ch27_02.htm

Now imagine if someone were to patent hexameter, or rhyming or certain turns of phrase. You would immediately cry "but that's insane, no one would be able to write poetry properly!". Now programming is not as well known or appreciated as poetry, so people don't immediately see where the problem lies. But programs are written works, nonetheless, and thus they work in roughly the same as written poetry and prose.

If you're more prosaic you could imagine court orders, or iso standards, or indeed patent applications themselves. Imagine if one could patent particular forms in patent applications on particular forms in patent applications in particular forms of patent applications in...

In short: when you're doing something creative in written text, you use copyright. If you're being creative in the physical world you use patents. It'd be a bit silly to apply copyright to machines; it's equally silly to apply patents to writing. ;-)

Re:What's wrong with software patents? (0)

Anonymous Coward | more than 2 years ago | (#36711848)

"The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets."

You see that is the problem people thing the laws are made to protect small companies, the law is made to protect everyone no matter what is the size of you business, so big companies with big fat portafolios have the same rigth to exclude you from creating what you invented, or a least compete with you "cross license"
so dont fall into the myth of the small inventor.

The problem with software patents is the there is no limits in the software field what is patentable and what is not, software is basiclly math, you can take a mathematical equation change the parameters and obtaing a patent and now you can exclude everyone from using the equation, for me that is just wrong.

Re:What's wrong with software patents? (0)

Anonymous Coward | more than 2 years ago | (#36712216)

The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

This applies just as much to software as to physical objects. Suppose I came up with a method to dramatically increase a car's gas mileage. What's the difference if the method is a change in the physical structure of the engine or an improved algorithm in the car's software? The same logic applies: if my method is not protectable by patent law, I lack economic incentive to put the necessary time and effort into developing the invention.

I understand (and agree with) arguments that the patent time should be less for software, that the thresholds for patentability and enforcement are far too low, and that the whole system in general is being abused and needs major changes.

But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

You see that is the problem people thing the laws are made to protect small companies, the law is made to protect everyone no matter what is the size of you business, so big companies with big fat portafolios have the same rigth to exclude you from creating what you invented, or a least compete with you "cross license"
so dont fall into the myth of the small inventor.

The problem with software patents is the there is no limits in the software field what is patentable and what is not, software is basiclly math, you can take a mathematical equation change the parameters and obtaing a patent and now you can exclude everyone from using the equation, for me that is just wrong.

Re:What's wrong with software patents? Here's your (0)

Anonymous Coward | more than 2 years ago | (#36717184)

this learned study clearly shows why there should be no software patents.

http://www.bu.edu/law/faculty/scholarship/workingpapers/2011.html

Re:What's wrong with software patents? (1)

Rozzin (9910) | more than 2 years ago | (#36734504)

There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

cf.: http://mimiandeunice.com/2011/06/08/status-quo/ [mimiandeunice.com]

Patents != Monopoly (0)

speedplane (552872) | more than 2 years ago | (#36709610)

It's generally a good document answering basic questions on software patents, but the answer to the first question makes me cringe: "What is a patent? A patent is a state-granted monopoly ..."

A patent is not a monopoly. A monopoly, implies that a person have market power: that they can set the price of a product above what it would be in the free market. However, a patent does not grant such power. The vast majority of patents are for useless inventions and would not be able to demand any market power. But even useful patents don't necessarily confer monopolies. I doubt there is a single software patent that confers a "monopoly" on the patent holder. Any infringing software can be modified to work around just about any software patent. For example, if you have a patent on quicksort, I'll use merge-sort. If you have a patent on binary search, I'll write a ternary search algorithm. Patents do not confer monopoly power, they only confer the right to exclude others from infringing on the patent.

Just a bit of nit-picking in a generally good document.

Re:Patents != Monopoly (1)

martin-boundary (547041) | more than 2 years ago | (#36709726)

A patent is not a monopoly. A monopoly, implies that a person have market power: that they can set the price of a product above what it would be in the free market. However, a patent does not grant such power.

You're wrong. A person with a patent does have market power. They are the only ones who can make/sell/etc products which depend on the patented claims, in the market comprised of all products which depend on those claims. Thus the market for that claim is certainly not free, and the price demanded is certainly above the price that would be demanded if that market was free.

Their power doesn't however arise from normal business activity, it arises from the legal power of the state granting them the monopoly in exchange for a fee.

Re:Patents != Monopoly (0)

Anonymous Coward | more than 2 years ago | (#36709748)

I doubt there is a single software patent that confers a "monopoly" on the patent holder. Any infringing software can be modified to work around just about any software patent. For example, if you have a patent on quicksort, I'll use merge-sort. If you have a patent on binary search, I'll write a ternary search algorithm.

Enjoy the Patent on Linked-Lists. [google.com]

Re:Patents != Monopoly (-1)

Anonymous Coward | more than 2 years ago | (#36710000)

That is truly insane. That is so crazy it could almost be Porn Bomb class bullying. Instead of signing someone up for a bunch of porn at a work address someone prolly decided to file an egregious patent in poor Ming-Jen Wang's name.

Re:Patents != Monopoly (3, Informative)

rtfa-troll (1340807) | more than 2 years ago | (#36709774)

Monopoly [merriam-webster.com]
1
exclusive ownership through legal privilege, command of supply, or concerted action
2
exclusive possession or control
3
a commodity controlled by one party

Definition 2 definitely doesn't need market power. Please don't confuse a "monopoly" (english language word) with being found guilty of abusing an "illegal monopoly" (legal term) which requires a much more stringent standard.

Re:Patents != Monopoly (1)

speedplane (552872) | more than 2 years ago | (#36711322)

But a patent does NOT give the right to "exclusive possession or control". Simply because you have a patent on something does not mean that you can actually use it. If Edison patents the light-bulb and then I come along and patent the florescent light-bulb, I can NOT make a florescent light-bulb without Edison's permission. A patent simply gives the right to exclude others, it does not give you the right to practice an invention yourself, exclusively or otherwise.

Re:Patents != Monopoly (0)

Anonymous Coward | more than 2 years ago | (#36709808)

A patent is not a monopoly.

a patent is a monopoly on the patented invention. true, it's not a monopoly on anything besides, but TFA didn't say that.

Re:Patents != Monopoly (1)

Qzukk (229616) | more than 2 years ago | (#36710152)

Any infringing software can be modified to work around just about any software patent. For example, if you have a patent on quicksort, I'll use merge-sort.

I have the patent on quicksort, and your application sorts, so it looks to me like it's infringing. I guess I'm going to have to sue you and then we'll see if the jury thinks you're using quick sort or just trying to blow them over with your fancy merge sort talking.

The difference between so-called "business method" or "software" patents and real patents is that when I have a real object, it's trivial to inspect or dismantle it to determine whether it's infringing or not. When you patent a process, often the only visible part is the output of that process, so if it outputs the same thing, you must be infringing.

Now, add in bullshit like the Doctrine of Equivalents and see how far your philosophy reaches before you're bankrupted by court costs.

So as long as you dont distubute to the US? (2)

nzac (1822298) | more than 2 years ago | (#36709782)

Only the US appears to have really bad software patients and if you live outside the US EU and Japan chances are no one bothered to patent it.

I also find it funny that source code is considered a description of the patient. Does that mean for the likes of x264 you would have to sue each individual complier for the infringement (yes I know they distribute the complied library). Also does that mean that all Gentoo users are terrorists/communists?

What's the difference between source and binary? (2)

Rich0 (548339) | more than 2 years ago | (#36710088)

I found their discussion around the difference between source and binary distribution interesting. I'd be curious as to whether you could even come up with a truly robust definition for those terms.

Is the distinction being human-readable? Well, if I have an opcode table binary executables are at least as readable to me as Chinese is.

Is the distinction being directly executable? Well, what about Java and any language that compiles to bytecode? What about a theoretical microprocessor that implements in hardware a C interpreter?

Machine code and C are just two languages - they are a bunch of symbols arranged in some syntax that coveys a series of steps to be executed.

I could see how you could distinguish between writing code and executing code, just as you can distinguish between talking about robbing somebody and actually doing it.

Re:What's the difference between source and binary (1)

nzac (1822298) | more than 2 years ago | (#36710554)

I would think that free speech only applies to what humans say not the output of a complier and the output changes depending on settings. While you can imply or auto complete some things this is the actual work of a human. If someone writes a program in machine code so that it can be read then it would be source code as well.

 

Is the distinction being human-readable? Well, if I have an opcode table binary executables are at least as readable to me as Chinese is.

Stop trolling, if you did not speak English this would also be unreadable to you.

Re:What's the difference between source and binary (1)

Rich0 (548339) | more than 2 years ago | (#36716330)

Stop trolling, if you did not speak English this would also be unreadable to you.

Woosh!

Of course, but I do speak English, so I picked Chinese as a random example of a language I don't understand. And you're just proving my point - binary code is no less human readable than any language that you don't happen to know.

Re:What's the difference between source and binary (1)

nzac (1822298) | more than 2 years ago | (#36717480)

Speech is communication that someone intends to use to convey information to another person (probably not an accurate definition) but if it is actually understandable by anyone or actually has any information is irrelevant. Legally speaking and by my definition you probably don't speak to your computer its just IO, its can become seeking if your communication goes to someone.

What is the relevance to your argument that someone cant understand something because they have no knowledge of the language? Its quite obvious and irrelevant. You were trying to make it support your argument buy picking a popular /. ethnic/racial marginalisation (that might be a little over the top and you may not have intended to). Is the sole inverter of a (programming) language not entitled to free speech because no one yet understands it (some lobby group convinces a country not to allow a new language to be developed)?

Re:What's the difference between source and binary (1)

Rich0 (548339) | more than 2 years ago | (#36723366)

My whole point is that there is fundamentally no real fundamental difference between source code and binary code in the first place, so it seems a bit silly to treat them differently from a legal perspective. The difference at best comes down to intended use. If I email you a binary and tell you not to run it, does that make it non-infringing? If I email you source code and tell you to compile/run it, does that make it infringing? Where do you draw the line? I suspect it would come down to communication of intent, and if that is what we want to look at then why bother to distinguish between source and binary as it is completely orthogonal.

I was anticipating the argument that the difference between source and binary is that the former is human-readable. However, there is nothing that really makes source more readable than binary, other than the fact that it is usually written in languages more similar to European languages than the x86 instruction set or whatever. In fact, if you educated somebody in China WITHOUT any exposure to any European language (including programming languages that contain European words), and taught them to a graduate-level in Computer Science, they might find it easier to read binary code in a hex editor or dis-assembler output than in C.

And, for the record, I have spent time trying to learn Kanji and Hiragana, and the former is barely different from Chinese, having traveled to Japan several times. I am shocked as the next guy when people utter racial slurs, and I don't really consider picking a random language that not many who read Slashdot are likely to know as an example a slur. I could have picked French, but the fact is that French is fairly comprehensible to most of those around here. Maybe next time I'll pick Cuneiform, if that isn't considered a slur on archaeologists the world over.

Re:What's the difference between source and binary (1)

nzac (1822298) | more than 2 years ago | (#36726980)

Im still not sure your not trolling address my actual points.

You have to look at it from the other end speech its not defined by if its reverse engineer-able or not, you dont read binary code left to right or another direction you jump all over the place and re read sections. Speech is determined by being it spoken/written not by the recepient understanding. Computers are in no way legal entity to be compared to a human and though a hex editor gives a lot of context programs are still just a big number (this has its own arguments associated with it) that was worked out by a computer. If you want to hand write binary instructions (for anything large this is terribly inefficient to create and the number of people who could make the code run significantly faster than C without unreasonable bugs would possible in the single digits, its not practical to code say VLC in binary) that you want to show to someone else I would guess you could test it court.

I did not call it a slur, i don't think it is and you were not intending to, you compared binary to Chinese and said they were the same where it counts for the argument. The main reason i called you a troll is you put and example in to help prove your point that does nothing of the sort but may confuse people.

Re:What's the difference between source and binary (1)

Rich0 (548339) | more than 2 years ago | (#36739358)

So, how is source code "free speech" but binary isn't? You can read either out loud. Either is understandable to somebody trained to understand it - as with any language. Either can be processed directly by a microchip as well...

Re:What's the difference between source and binary (1)

angloquebecer (1821728) | more than 2 years ago | (#36711674)

Machine code and C are just two languages - they are a bunch of symbols arranged in some syntax that coveys a series of steps to be executed.

This is the reason software shouldn't be allowed to be patented in the first place. It doesn't matter whether you write a linear algebra system or an iPhone fart program, in the end it's all math.

Not legal advice? (1)

drinkypoo (153816) | more than 2 years ago | (#36710216)

If it's not legal advice, then I would have to be some kind of idiot asshole to follow it, as patents are a legal fabrication.

Re:Not legal advice? (0)

Anonymous Coward | more than 2 years ago | (#36710516)

It's a boilerplate disclaimer used whenever giving legal in this kind of context. Failing to make the distinction would risk an incredible amount of liability.

Re:Not legal advice? (1)

drinkypoo (153816) | more than 2 years ago | (#36710750)

It's legal advice which is not legal advice and if I follow it then I am a bozo, because it was clearly marked as not legal advice. See the problem? It ought to have just been some musings on a blog someplace because that's how useful it is.

The danger of software patents. (3, Informative)

archebyte (2361324) | more than 2 years ago | (#36710436)

Richard Stallman's lecture on patents is worth listening to get an understanding of the real issue and some history on how some software patent cases have played out. http://audio-video.gnu.org/audio/#2011 [gnu.org] Scroll to 'The danger of software patents.'

Re:The danger of software patents. (0)

Anonymous Coward | more than 2 years ago | (#36710842)

That asshole has nothing worth listening to. His death would remove his conflated sense of self worth from an already damaged population.

Re:The danger of software patents. (1)

robsku (1381635) | more than 2 years ago | (#36731568)

That's just stupid, besides the asshole has done quite a lot of good things, harmed nobody and while he indeed has many opinions that I consider too strong/extreme the basics of his thoughts have value which can be seen in success of FOSS for example.

software patents a threat to Free Software (1)

nurb432 (527695) | more than 2 years ago | (#36710666)

No, they are a threat to our very way of life and should be stopped.

Copyright, sure, patent, no.

They're ones to talk. (1)

Vegemeister (1259976) | more than 2 years ago | (#36711590)

I don't think the Debian Project are the has the best ideas when it comes to software patents, seeing as their policy is 'assume the position for Uncle Sam'. We should instead follow the example of Canonical: 'incorporate somewhere under control of a more friendly government and waggle tongue'.

Inducing Infringement (0)

Anonymous Coward | more than 2 years ago | (#36713136)

Their explanation is probably incomplete, as it could easily be read as meaning that patents themselves induce their own infringement. That would mean anyone could sue a patent holder for having the patent, and I suspect this is not the case in reality.

OTOH if it is the case, then let's all get a-suing. ;-)

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