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Freedom of Speech in Software

michael posted more than 11 years ago | from the if-only dept.

Patents 250

akpoff writes " I've been struggling with the question 'what's wrong with software patents' but haven't been able to find the right words. I was over at John Gilmore's website and found a link to John Salin's 'Freedom of Speech in Software' letter to the USPTO back in 1991! This is one of the best explanations I've seen. He reminds us that computer programs are essentially like literature or music -- they are expressions of ideas. Just because they run on a computer doesn't make them uniquely different from other creative mediums. We should think player piano (patentable) vs the music (copyrightable but not patentable) it plays. Europeans -- put this letter into the hands of your MEPs!"

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Exclaim!!! (0, Offtopic)

pueywei (658832) | more than 11 years ago | (#6831975)

What! it has been going on for so long???

Another analogy (1)

BiggerIsBetter (682164) | more than 11 years ago | (#6831976)

Perhaps Pianola (computer) vs the music encoded on script it plays from (software)?

GNAA (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6831977)


Why the focus on software patents? (0, Insightful)

Thinkit3 (671998) | more than 11 years ago | (#6831978)

That's like saying field, but not household, slaves need to be freed. All patents need to be abolished. And they will.

Re:Why the focus on software patents? (1, Interesting)

Anonymous Coward | more than 11 years ago | (#6832014)

I do agree with you, but ATM the software patent issue is the one on the political agenda in Europe.

We can't allow the scope of the political debate to become too broad now, since that brings with it too many risks.

At some later stage, society should indeed revolt
against extreme copyright laws (both in duration and scope) and patent monopolies, since these really don't benefit society as a whole.

Tim Sefton

Re:Why the focus on software patents? (3, Interesting)

goldspider (445116) | more than 11 years ago | (#6832053)

And what, praytell, is wrong with allowing people to make money off of their invention?

Just because a system is abused, that doesn't make it a bad idea. The original concept of patents was a good idea, and it just needs a major overhaul.

And just for the record, I think software patents are one of those abuses of the system.

Re:Why the focus on software patents? (0)

Anonymous Coward | more than 11 years ago | (#6832128)

You can make money off your invention just fine by selling instances of it and being the best at making it. Patents are a stupid distortion of the free market used to slow down innovation so that centralised rulers can keep track of it.

Re:Why the focus on software patents? (1)

VanillaCoke420 (662576) | more than 11 years ago | (#6832240)

I would say it encourage invention, since others have to come up with an idea on their own.

Re:Why the focus on software patents? (3, Interesting)

Anonymous Coward | more than 11 years ago | (#6832152)

Nothing wrong with making money of an invention. If it is an invention, that is. I believe it to be quite rare to come up with something entirely New and of Inventive Nature.

I know a programmer. He's good. I believe that he can program anything you throw at him. I believe that there are many more programmers who can do that. So, where is the invention if all is required is the skill of a good programmer? They all could easily run the risk of infringing just by applying their usual trade.

Another thing to consider: Patents last 20 years. That is a long time for software. Special arrangments have been made to allow drugs a somewhat longer protection. If there are software patents, they should be shorter, 10 years max. at best.

I'm a (Dutch) patent attorney. I will never write a software patent (and never have). I believe that software patents should be possible, for example if you come up with an algorithm that allows video to be broadcasted requiring only half the bandwidth. However, I have sincere fear that the system will not be able to come up with rules that do justice to real inventors and to society, which should not be hampered by patents that are granted too easily and subsequently overstretched in court. Even on more straightforward matters (such as mechanics) the USPTO is certainly not what it should be, and unfortunately the EPO is slowly deteriorating towards the USPTO level. In addition, it is extremely hard to determine what the state of the art is (how are you going to search?), so patents will be granted while they shouldn't have been. In patent law, the onus is on the person accused of infringment. Not a good thing if it is nearly impossible for you too to determine what was already there.

Re:Why the focus on software patents? (1)

Gherald (682277) | more than 11 years ago | (#6832054)

I don't know about patents, of more interest to me is the copyright.

Books and literature can feasibly be reproduced by anyone, but only the author/publisher has the legal right to do so.

Perhaps there should be a law that prohibits binary-only distribution of software?

If the source code all distributed software in the world was freely availeable then copyrights could still be enforced much like with books and literature.

OSS is interesting, but I don't think its the answer to everything. If people also distributed all proprietary software in source format (which could be modified for personal use if you had an ordinary license), I think that would be a Good Thing(tm).

Is there a possible way to advocate this change, or is the idea doomed to failure?

Re:Why the focus on software patents? (1)

Phroggy (441) | more than 11 years ago | (#6832162)

If people also distributed all proprietary software in source format (which could be modified for personal use if you had an ordinary license), I think that would be a Good Thing(tm).

Is there a possible way to advocate this change, or is the idea doomed to failure?

The latter. Sorry.

fantastic (3, Insightful)

zarniwhoop (698439) | more than 11 years ago | (#6831980)

what a refreshingly elegant way of getting the point accros (piano vs music)! I have this very minute emailed the article to my MEP!

Not fantastic by email (1, Insightful)

Anonymous Coward | more than 11 years ago | (#6832194)

And unfortunately your MEP almost certainly will not read your email because like all MEPs they get far too many emails every day to bother reading them all. If, however, you took the time to visit your MEP and discuss the article face-to-face that would probably have much greater impact.

But if code is like music... (4, Insightful)

EvilAlien (133134) | more than 11 years ago | (#6831982)

... do we really want to encourage a bunch of code that is a blatant rip-off of existing ideas, just re-implemented? Perhaps a balance needs to be sought in short-lived patents. That was the original concept, IIRC... except the crusty old lawmakers who came up with it didn't realize how the rate of change in technology and ideas would increase.

Re:But if code is like music... (3, Insightful)

Anonymous Coward | more than 11 years ago | (#6832078)

Maybe not, but do we want it to be illegal?

Would you want music that uses chords that have already been used before to be illegal?

Re:But if code is like music... (4, Informative)

ralphus (577885) | more than 11 years ago | (#6832116)

It isn't about encouraging code to be blatant rip-off's of existing ideas. Did you RTFA [] ? I link [] it [] again [] for emphasis.

It's about me or you or anyone having the natural right to be able to stand on the shoulders of giants. Imagine if you didn't have the benefit of standard libraries because all the concepts and processes in them had been patented.

The ariticle [] lays out all sorts of other seemingly reasonable analogies that I'm too tired to type at 4 am.

FYI, I think this post [] does quite a good job of laying out the systemic issues.

Are you creating new ideas or stifling them? (0)

Anonymous Coward | more than 11 years ago | (#6832226)

If a bunch of code is a "blatant rip-off of existing ideas" that is not the same as a blatant rip-off of an existing expression of those ideas. The key is to understand there is usually more than one expression of each idea. Each separate expression of an idea is valid and protectable under copyright laws but there is not, and according to this process, should not be, any protection under patent laws.

For example, one work of literature may be similar to another because it uses the same idea for the plot, but that has been acceptable practice for authors for hundreds and thousands of years. Under copyright laws, the threshold of similarity is decided by judging the similarity of the expressions of the ideas, not the similarity of the ideas themselves.

Mod up (0)

Anonymous Coward | more than 11 years ago | (#6832354)

The above comment was insightful.

Re:But if code is like music... (2, Insightful)

Telex4 (265980) | more than 11 years ago | (#6832248)

But if code is like music do we really want to encourage a bunch of code that is a blatant rip-off of existing ideas, just re-implemented? Perhaps a balance needs to be sought in short-lived patents.

You misunderstand efficient software development, and the impact of software patents...

Most software is developed on top of other software, or other software ideas. For example, Mozilla is based upon HTML which is based upon HTTP which is based upon TCP/IP, and so on. If you patent a particular peice of software, then you limit the extent to which people can innovate on top of it.

And even if people do develop code that "rips off" existing ideas, we do want to encourage that. Think about MacOS, Windows, KDE, GNOME, and any other desktop environment - they all rip off ideas like "windows", "progress bars", etc. and reimplement them in their own way. Would you prefer it if we only had one desktop environment, protected by patents?

Pure software is meant to be covered by copyright, so that if you want to copy my idea, you have to do all the coding yourself (unless I use a Free license), meaning that essentially you do the same amount of work as me. This is ample IP protection for people who want to make money from software, as the past 40 odd years have shown.

Patents should only apply when the software is applied in inventions that use the natural sciences, not theoretical ones, e.g. in embedded software for a GPS system, but not in generic software like a progress bar, one-click shopping, etc.

Anyone else (-1, Flamebait)

Timesprout (579035) | more than 11 years ago | (#6831984)

Read that as Stalins Freedom of Speech in Software and wonder what the fuck would Stalin know abouts Freedom of anything.

Re:Anyone else (0, Offtopic)

Anonymous Coward | more than 11 years ago | (#6832003)


Did any one read the parent's post as "I'm a fucking moron and this is all I have to say?"

Re:Anyone else (0)

Anonymous Coward | more than 11 years ago | (#6832039)

Yes. Twice.

Re:Anyone else (0)

Anonymous Coward | more than 11 years ago | (#6832051)

Count me in.

Re:Anyone else (0)

Anonymous Coward | more than 11 years ago | (#6832056)

Me too. Every parent is a moron commenting on the parent being a moron. I hereby include myself and bring this to an end.

But wait a minute... (1, Funny)

Anonymous Coward | more than 11 years ago | (#6831985)

Europeans -- put this letter into the hands of your MEPs!
The RIAA told me that MEP files are illegal! Can't I write to my OGG instead?

Yeah but (5, Insightful)

ovoskeuiks (665553) | more than 11 years ago | (#6831986)

You can copyright a song.. but can you copyright the ideas behind how you made that song... I mean it's your idea etc but the basics of music aren't copyrightable. So why should we give people the right to own the ideas behind making software.

Re:Yeah but (1)

AmVidia HQ (572086) | more than 11 years ago | (#6832291)

not ideas behind making the software, but ideas IN the software. What you are refering to is methodologies and software languages.

It's not just what's wrong with software patents. (4, Insightful)

MickLinux (579158) | more than 11 years ago | (#6831999)

It's what's wrong with patents in general. Quite simply: There are natural rights, and there are granted rights. Your natural rights include such things as freedom of speech, freedom of the press, freedom of travel, right to property, and so on.

The natural rights are things that can be released to some extent by a person, but cannot be taken away. Therefore, as a government attempts to take these rights away, it drives anarchy, crime, and disorder, eventually resulting in the fall of the government.

Your granted rights include such things as welfare, right to a single national language (nationalism), right not to compete against foreign labor, right to a monopoly, (as in Spain) right to tax funds for your family title and property, and so on. Patents and copyrights fall into the latter class. They are granted rights.

The granted rights are those things that make it easier to live, especially when people are not good to each other on their own. You break your leg, and didn't have insurance, and can't work, and haven't been paid justly for your labor in the past, so you have no assets? Well, we will make others pay for you.

The problem is that every granted right that is given to one person requires the government to attempt to deprive another person of their natural rights. So the more granted rights you have, the more unstable your government is. A sign of this is that your economy will be bad, the unofficial (criminal) economy will be larger, and violent crime will be greater, as well.

Where your balance point between natural and granted rights is, is a balance that is forced by people not dealing with each other rightly. But there is another factor, as well: when those with power just want benefits, and have the ability to take them by controlling the law. When this happens, though, the government is not going to last long.

Unfortunately, I'm seeing this happen in the EU, so I don't expect the union to last. But if I am correct, it also means that no argument you use will work. So by all means, try your own. But if you want, present this to them as well. Maybe it'll wake someone up, but I doubt it.

Re:It's not just what's wrong with software patent (1)

tesmako (602075) | more than 11 years ago | (#6832087)

Well. That was a tad anti-socialistic.

Granted rights? Natural rights? (4, Insightful)

heironymouscoward (683461) | more than 11 years ago | (#6832247)

Your granted rights include such things as welfare...

So you are saying that because European governments tend to tax higher in order to support a richer welfare system that EU countries will also suffer more violent crime?

This is the strangest anti-state argument I've heard in a long time, and I'm really unsure what it has to do with patents.

If anything, the European-style welfare systems achieve something quite extraordinary: a society in which the poor and the weak always find support, and a society in which spare time is valued over simple wealth, demonstrated by the long holidays most Europeans enjoy.

Violent crime has its origins in things very different from high taxes (again, this linkage boggles my mind, the high-tax countries in Europe are generally the most calm, think Scandinavia and Belgium). Violent crime comes from organised criminal gangs who operate where the state is weakest. This happens when the state fails (in places like Albania) or when the state loses control over large segments of the population (in drug-ridden inner cities). A strong state is almost always a good cure for violent crime, but so is the avoidance of criminalising anti-drug legislation.

You want violent crime? Look at the USA in ten years' time, when almost 1 in 11 men will have been imprisoned at one time or another, and 1 in 3 black Americans will have a criminal record. Somehow, taxes and patents are not behind this. Bizarrely punitive lawmakers and courts, yes.

The EU is a nice place to live and work, and the union will last for much longer than people like you expect.

Re:It's not just what's wrong with software patent (1)

Yokaze (70883) | more than 11 years ago | (#6832312)

> There are natural rights, and there are granted rights.

What makes "right on property" a natural right? Isn't your naming a bit suggestive, and your selection arbitary?

Doesn't the goverment grant me the right own a thing, and denies other people to take it away from me?
What about the "right to smash the next persons head, because I don't like his face"?
Considering the history of humankind, I think that is a natural right, too.

> Unfortunately, I'm seeing this happen in the EU, so I don't expect the union to last.

How are you seeing this happening in the EU, especiallly in comparison to the US?

Nationalism? Bad economy? Unofficial economy? Violent Crime? Social unrest?

> It's what's wrong with patents in general

The idea was, in order to drive innovation a innovative idea deserves the right to be protected, so that the work or the genius in finding it pays of for the one investing it. What is wrong with this logic? Because it "takes away natural rights in order to grant rights, which makes society instable"?

The problem is, most patents are neither innovative, nor was work invested to find the idea and mostly they stifle innovation as they prohibit most people to work on various matters because they create a "patent minefield".

Actually, I'd say there is nothing wrong with the idea of patents, but with their application.

Nope, sorry. (1)

stewby18 (594952) | more than 11 years ago | (#6832322)

The problem is that every granted right that is given to one person requires the government to attempt to deprive another person of their natural rights.

This seems to be the center of your entire argument, but it's totally unjustifiable. It makes the fundamentally flawed assumption that "natural rights" and "granted rights" are opposed in some way, but there are countless counter-examples. What natural right does your "right to a single national language" take away? Some imaginary natural right to have other people understand you when you speak your language of choice? What about the "right not to compete agaings foreign labor"? Do you think we have a natural right to have other people hire us if we do the best job?

Without even getting into the fact that you give a list of natural rights that not everyone would agree on, your argument is deeply flawed. Go read some more philosophy of the ideas of rights, then try again.

What does welfare have to do with patents? (0)

Anonymous Coward | more than 11 years ago | (#6832330)

Moderators, before you mod up a post because it uses long words, read the damn thing. All this guy is saying is that left-wing politics cause violent crime, which is a great explanation for violent crime in the inner cities, it's cause of those commie drug lords.

The parent post is just a fancy troll. Please give me mod points today so I can squash it down where it belongs.

There Should Be No Patents, At All! (-1, Troll)

dupper (470576) | more than 11 years ago | (#6832000)

Books, software, cars, people, it's all just a random collection of katakana characters in the Matrix.

Alternately: 'Cause we all belong to each other, man. It's all like, whoa. *cough* *cough*

patents shouldn't be illegal (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6832001)

they are funny LOL

Computer science is too young for patents (5, Insightful)

putaro (235078) | more than 11 years ago | (#6832007)

The real problem with software patents is that the field is too young to support them. It's as though people were able to take out patents on "the wheel" and "fire". The patent office has completely abdicated its responsibilities as well and allows too many patents that are obvious to any competent practitioner. Ideas no longer have to be reduced to practice (i.e. implemented) which allows for a vast number of frivolous patents to be filed for.

It's unlikely that we'll be able to get rid of software patents entirely, but perhaps some changes could be made that would make the world better for us all. A peer review panel to reject obvious patents would be a good start along with some changes outlawing overly broad patents.

Re:Computer science is too young for patents (3, Funny)

nerdguy0 (101358) | more than 11 years ago | (#6832068)

It's as though people were able to take out patents on "the wheel"...

Umm... it's already been done. US Pat. #5,707,114 []

Winner takes it all (2, Interesting)

G3ckoG33k (647276) | more than 11 years ago | (#6832015)

Because, in the software industry the history has shown (especially via Microsoft) the first winner takes it all, leaving that winner with disproportionate advantages versus any competing idea.

Re:Winner takes it all (1)

tesmako (602075) | more than 11 years ago | (#6832095)

Well, microsoft wasn't first with anything, maybe the thing is that they did a lot of things best? Which would somewhat explain the market dominance?

Re:Winner takes it all (0)

Anonymous Coward | more than 11 years ago | (#6832237)

I hope that's a troll.

MS was/is best at marketing and legal action.

That's it.

Re:Winner takes it all (1)

ch-chuck (9622) | more than 11 years ago | (#6832292)

they did a lot of things best

Depends on what you mean by 'best' - if you mean 'cheap and convient' then yes, rather like popping into McDonwalds for a quickie burger is the 'best' lunch, they're everywhere, just drive thru, you don't even have to get out of the car, passably tasty and relatively inexpensive, and who cares if it's nutricious or not. But if you mean 'best' as a healthy meal made by an trained dietecian and chef that's delicious, but costs a bit, you'll have to pick stuff from an complicated menu, and will have to wait a while - then Msft isn't even close.

Re:Winner takes it all (1)

Avakado (520285) | more than 11 years ago | (#6832367)

Microsoft wasn't first with anything

They were the first to get a deal with IBM to distribute an operating system with their computers.

What about the compiled programs? (1, Insightful)

eMartin (210973) | more than 11 years ago | (#6832016)

OK, the "programs are writing" makes complete sense, and I woud think that when distributing source only, the only worry would be infringing on copyrights, but if a program is compiled, it's no longer writing. It becomes a tool, and patents are there specifically for that (think of tools that come in the form of machines).

So isn't this whole "software patents" thing actually good for OSS, in that it will only make it harder to distribute proprietary software in its compiled form?

Re:What about the compiled programs? (1)

MickLinux (579158) | more than 11 years ago | (#6832033)

Oh, yes... umm, so we can distribute all the source code we want, but if we ever compile it to use it, we get hit for a lawsuit equal to the minimum patent licensing fee, plus lawyer fees? With MP3s, I guess that's $10000, though you get 5000 licenses for that. But first you have to come up with 5000 people who all want the same license, or the MP3 people will hit you with 5000 suits for $10k each... ... so no, pointless intellectual exercises are what attract chess players and Mensa members, not computer programmers. It would not be good for OSS.

Aside from that, I base my arguments for or against laws, based on right and wrong. If I based my arguments on just what I want, you'd see some moral consistancy from me: I'd also be a highway robber, carjacking every time I thought I could get away with it. Which wouldn't be often, but just often enough that you'd be afraid to go out driving very far. I hear it's like that in Spain (highwaymen, and all).

Re:What about the compiled programs? (1)

eMartin (210973) | more than 11 years ago | (#6832075)

Oh, yes... umm, so we can distribute all the source code we want, but if we ever compile it to use it, we get hit for a lawsuit equal to the minimum patent licensing fee, plus lawyer fees?

Oh? I always thought that patents apply to distribution only. If I put some glue on a plate to catch mice in my own home, can the guy who patented those glue traps sue me? Or would he only have a case when I try to sell or distribute the plates to others?

Re:What about the compiled programs? (0)

Anonymous Coward | more than 11 years ago | (#6832120)

'fraid not. Copyright is on distribution, but patent is different. In most jurisdictions, patents apply to the mere use of a device - if you, as an amatuer hobbyist, recreate a device, you can still be done for patent violation.

Patents are a tool of control, and have never really been about rewarding innovation - that's just the propoganda for naive geek inventors. Patents allow rulers, governments or kings, say what will and will not be developed technologically, they represent mastery of businessmen over engineers.

Re:What about the compiled programs? (2, Interesting)

hamster foo (697718) | more than 11 years ago | (#6832098)

"if a program is compiled, it's no longer writing"

Even compiled it is still writing. I can't read German and make any sense of it. Does that mean it is not writing? Comprehension is not required for something to be considered writing.

"So isn't this whole "software patents" thing actually good for OSS, in that it will only make it harder to distribute proprietary software in its compiled form?"

Perhaps if that was all that software patents were being applied to, then one could make an argument that it is positive for OSS. I wouldn't agree with said argument, but that really doesn't matter. The problem lies in software patents being extended to cover the ideas behind software. Patenting things like "a process to do X" is a bad idea because it squelches competition, and in some cases, prevents a product that actually implements the idea from ever being produced thanks to firms that collect patents with no intention of implementing them.

Re:What about the compiled programs? (1)

Gherald (682277) | more than 11 years ago | (#6832117)

> but if a program is compiled, it's no longer writing. It becomes a tool, and patents are there specifically for that

If it is a tool, why do I need licenses?

Re:What about the compiled programs? (3, Insightful)

Phroggy (441) | more than 11 years ago | (#6832159)

OK, the "programs are writing" makes complete sense, and I woud think that when distributing source only, the only worry would be infringing on copyrights, but if a program is compiled, it's no longer writing.

I can write a piece of music with a pencil, using standard musical notation. I can also punch holes on a roll of special paper in exact positions so that a player piano (a machine) can then reproduce the music as I intended. The process of doing this may be patented. The melody I write is copyrighted. Does my translation from human-readable to machine-readable media somehow change the nature of what the music is? Why should my song be patentable just because it's on a player piano roll?

If another person came up with the same tune that I did, but can demonstrate that they did so independently, they are not guilty of infringing my copyright, because they didn't copy from me. If each of us makes a piano roll of our respective songs, this is still true. Why should I be able to patent the piano roll of my song, but not what I wrote with a pencil?

Re:What about the compiled programs? (3, Insightful)

xoboots (683791) | more than 11 years ago | (#6832221)

> but if a program is compiled, it's no longer writing

This is a confusion of what a compiled program is. A compiled program is also code--machine code--and hence a valid form of speech, even though only intended for a computer. There is no reason not to believe that the compiled program could have (not as easily) also been produced by a person--it certainly can be read by a trained individual.

Compilers translate one form of expression into another. The letter expressly indicates the difficulty that patent claims make in light of machine generated software (amongst other things).

Re:What about the compiled programs? (1)

Lonath (249354) | more than 11 years ago | (#6832370)

but if a program is compiled, it's no longer writing.

What if we translate the code into some other language (both programming and natural language) that you don't understand? Is it still writing?

Have you noticed how EULA's always have clauses saying you can't decompile or disassemble the binaries? Why do they put those in there? Could it be because the binaries contain enough information that you can return the code to some semblance of readable form? (Ok so this doesn't work too well, but it works well enough that companies put it into their EULA's.) So, the binaries aren't changed to not be writing, they're just changed to another written language that can be sort of translated to something like the original written thing.

I love software patents (0, Insightful)

Anonymous Coward | more than 11 years ago | (#6832023)

Finally the contradictions inherent in capitalism are coming home to hit the rich people, i love it!

Oh boohoo my job went to India, oh boohoo software patents ruined my small business, boohoo some paid off politician banned my program, blah blah fucking blah...

I mean hey everyone likes capitalism right? Then I have no sympathy for you when it finally crushes you and turnes you into an alienated little being in a cube living life vicariously through the media corporations.

I love it.

I just can't wait till the next world war, with the proliferation of nukes that is gonna be fun!

Re:I love software patents (0)

Anonymous Coward | more than 11 years ago | (#6832133)

Patents and copyrights run counter to free-market capitalism, being quite obviously government-granted monopoly rights.

What misguided "anticapitalist" students rail against is really "corporatism" or, a largely equivalent older word, "merchantilism" .

Just becuase I'm anti-merchantilist doesn't mean I'm anti-capitalist or pro-communist.

Free software is much closer to the capitalist ideal than proprietary software.

Code as speech (1)

Roark Meets Dent (650119) | more than 11 years ago | (#6832025)

Here [] is a paper discussing the idea that computer code is a form of speech.


Anonymous Coward | more than 11 years ago | (#6832163)


How to bring across your message to MEPs (4, Informative)

Sven Tuerpe (265795) | more than 11 years ago | (#6832035)

Europeans -- put this letter into the hands of your MEPs!

This article [] suggests that free speech might not be the prime issue from a MEP's point of view.

Re:How to bring across your message to MEPs (2, Interesting)

JaredOfEuropa (526365) | more than 11 years ago | (#6832186)

This article suggests that free speech might not be the prime issue from a MEP's point of view.
In many cases MEPs, like other politicians, need to look at all sides of the equation: free speech, consumer rights, economics, practicality, etc. All of these are valid concerns for politicians, though you are right that different politicians will weigh these concerns differently.

I have written to one of the MEPs of the party I voted for, the European Liberal Democrats (Note that Liberal means something very different in Europe than it does in the States; it's actually a right-wing party), about my concerns regarding software patents. She replied with an amendmend to the proposed directive, drafted by the commission she is in. From this directive I gather that these politicians do share our concerns to some extend. A few choice quotes from the amendment (taken from the argumentation of each revision to the Directive):

"It is clear however that the Directive, despite argmentation by the Commission, will open the way for a broader use of patents as a means to protect computer software".

"The goal of patent law is not to ensure that patent holders enjoy certain privileges; the privileges granted to patent holders are only an instrument to benefit the invention process, to benefit society as a whole".

"The requirement of an effort of invention, and a significant improvement to existing technology, are fundamental if one wants to prevent patents for trivial "inventions".

And last but not least: "3bis: Exclusion from patentability: An invention implemented in a computer is NOT to be seen as a technical contribution only because it implies the use of a computer or other device. Also excluded are inventions that use computer programs, business methods or mathematical algorithms, and that do not carry any technical implications other than processing and rendering of information in a computer system or network. This means you cannot patent some widely practiced activity X as "Activity X on a computer/the Internet".

(Translated badly from Dutch by me).

Reading these amendmends, I get the warm and fuzzy feeling that some politicians at least share our concern. What remains to be seen is how they weigh these concerns against other interests.

Re:How to bring across your message to MEPs (1)

Telex4 (265980) | more than 11 years ago | (#6832252)

Having talked to several MEPs in Brussels on Thursday, I'd have to agree that polemics about freedom of speech won't change many MEP's minds.

We particularly need to target the conservatives and moderate socialists (e.g. Labour in the UK), and they are the people who are least likely to be swayed by ideological arguments. They respond to economic studies, threats to small businesses, implementation problems, and other more "concrete" problems.

If you want to contact an MEP, find one who is a conservative in the PPE-DE alliance, and contact him/her as a constituent, telling him/her about how software patents will affect you, and what amendments you would make to improve the directive.

Re:How to bring across your message to MEPs (1)

Lonath (249354) | more than 11 years ago | (#6832387)

Most people don't understand computers and don't see the possibilities of what they can do.

I don't think arguments about "things that will never be created" because of patents will work. Simply because people can't grasp the potential of computers, so you sound like you're full of it.

I recommend talking about things that people can lose. Like how Ebay lost a big patent suit, and had the "inventor" wanted to, he might bave been able to shut down Ebay. Talk about MS IE and plugins and explain how all of the "cool" stuff on the WWW could be taken away.

Be concrete with concrete examples where patents take away things people already have. That's concrete. They can understand that they could do X before, and now they can't do X. Talking in terms of abstractions and potentials won't work since people fundamentally don't get it. For most people, the limits of what a computer can do are the things that they know how to do in commercial products that already exist. Not in the crazy ideas that most people here probably think about.

Patents (-1, Redundant)

Anonymous Coward | more than 11 years ago | (#6832036)

What's all this I hear about people being against Software Pattons? If a bunch of programmers want to dress up like World War II generals I say let them. They'd be so cute in their little soldier outfits with the little medals and the flag in the background. As long as they didn't go around slapping anyone, I say let me be and . . .

What? Sofware Pattents

Nevermind . . .

-- Emily Lattella

One good thing about software patents. (2, Interesting)

NearlyHeadless (110901) | more than 11 years ago | (#6832038)

Here's something I posted on another site a couple of days ago:

Although I would really prefer to not have software patents, I don't think that the case against them is so clear cut. There are many terrible software patents--vague, obvious, trivial, overly broad, and so on. But there are also software patents that are specific, novel, useful, innovative, implementable. And it is possible that software patents benefit us in a couple of ways.

First, companies are encouraged to publish details of their inventions that otherwise would have been held as trade secrets. In the database management world, most of the innovations have been made in industry, and before software was patentable most details were kept secret. For example, David Lomet tells me that Tandem held as secret the "repeating history" recovery scheme that was later re-invented by Mohan and published as part of IBM's ARIES system (parts of which were patented.). See ARIES [] for details of that system and links to good patents.

If it weren't for software patents, it's doubtful that IBM would have published such details.

Lomet himself has a couple of dozen patents. Of the ones I've looked at, they are all high quality patents. On the question of patents encouraging innovation, he says:

I believe that software patents increase the value of research to companies, and hence that there is more industrial research because of it. It is impossible to know which inventions would or would not have been made due to software patents, but I firmly believe that there would be less research, and that some of the inventions would not have been made- and some that would still have been made would be held as trade secrets. For example, almost all of my inventions were made while I was working in a research lab. It seems highly plausible to me that had I held a different job, I would not have made as many inventions.

(Personal Communication)

I'm not sure that this effect is as significant, and the ill effects of all the low-quality software patents may outweigh the benefits, but I think it's important to admit that there are some good effects.

Re:One good thing about software patents. (1)

phulshof (204513) | more than 11 years ago | (#6832094)

I couldn't disagree with Lomet more to be honest. This is SOFTWARE we're talking about. If research in a field would take too much time, the problem most likely wouldn't exist anymore. Therefore the cost involved in researching a problem doesn't give cause for a 17 year monopoloy. On top of that: as multiple companies try to solve a problem at one time, why should only the first runner to the patent office deserve protection?

It's simple: if you don't research in software, by the time you have the needed knowledge it's irrelevant already. Copyright protection is more than enough needed to keep the software industry running smoothly.

Re:One good thing about software patents. (1)

Bert Altenburg (699926) | more than 11 years ago | (#6832215)


The goal of a patent law is to make sure that knowledge gets into the hands of society, and not be kept secret. Because of that, society can build on those ideas, giving rise to even better ideas to the benefit of society. The reward for sharing your inventions is a patent.

I'm not under the impression that innovation in the software industry is currently being stiffled because of a lack of software protection, so patent protection for software can be said to be not necessary. If we want to promote innovation for software, make it mandatory that any PC sold with Windows has a partition with Linux/Unix too. People would learn that a thing called 'choice' exists.


Re:One good thing about software patents. (1)

xoboots (683791) | more than 11 years ago | (#6832279)

Innovation may be spurred through bothcompetition and co-operation but it is a mistake to assume that patents actually spur innovation. Indeed, patents restrict use and hence refinements.

The issue again becomes confused with property: a patent holder is deemed to be the owner of a particular process. In truth, the public at large is the "owner" (as no idea can naturally be "owned"). We the people grant supposedly limited rights to idea holders as a "reward" for publishing the details of their idea. This is meant as an incentive to publish so that at some future time, we the people can put the discovery to general use. In the case of speech related acts, this process actually confers a power over others to restrict the boundaries of permissible speech. This is not an issue of balance or fairness or ensuring maximum efficiency of output. The concern is one that forms the basis of our natural rights to express ourselves without reservation of reprisal. Allowing certain forms of speech to be restricted is unacceptable, regardless of supposed cost or benefit. The idea of software patents is abhorant to humanity because it goes against the freedom that all people not only deserve, but have a universal moral right to.

I disagree (4, Insightful)

Fizzlewhiff (256410) | more than 11 years ago | (#6832041)

Just because code is text and literature is text doesn't make the two equivalent. Using this code is art principal, you could take a piece of hardware and take the mechanical drawings used in the design of the hardware and declare those to be art and whine about those patents too.

I'll agree that software patents are freaking stupid but come up with a better argument than code is a form of art. I don't know who the hell came up with this concept but I've heard it long before all the ad agency artsy folks broke into the "software business" when they got their first copy of Dreamweaver or Hotmetal.

Re:I disagree (0)

Anonymous Coward | more than 11 years ago | (#6832205)

I would think that most people that do (for example) open source programming do it as a form of art. To people that live and breathe code it is an art form. There are many ways to accomplish the same things with a few lines of code but only an artist can make it look nice as well.

Re:I disagree (1)

Wolfbone (668810) | more than 11 years ago | (#6832211)

Think music rather than literature. The realisation or expression of the plans for a piece of hardware is an expensive and difficult task involving the manipulation of physical materials but to play a tune from the notes written on a musical score is easy. You can hum the notes or learn to play the piano.

If a musical score can be described as the representation of human artistic, emotional and spiritual thought in a form communicable to others and expressible by means of the playing of musical instruments, then likewise a computer programme can be described as the representation of human rational, logical and mathematical thought in a form communicable to others and expressible by means of execution on a computer and associated devices.

Re:I disagree (1)

kfg (145172) | more than 11 years ago | (#6832244)

Well, the mechanical drawings are not patentable. They are copyrightable, in fact because they are printed matter and art. Only the physical mechanical object is patentable.

Ever see a book of furniture plans? You can build whatever you want from the plans and sell the results, but you can't reproduce them for other than fair use.

This is copyright free of patent restraints.

Code never becomes a physical object. It is always, even when compiled and run, strictly the logic embodied in the text.

Always the algorithm, never the "thing."

Patents were conceived to expressly cover only physical objects and not merely idea.


better arguments (2, Insightful)

alizard (107678) | more than 11 years ago | (#6832046)

It'll be a lot more useful if you explain how software patents will be used to suppress innovation, stop the creation of new technology, and prevent the creation of new companies, jobs, and products / services / TAXABLE INCOME.

Talk about things like the Amazon one-click patent, I'm sure a quick search here will turn up plenty of examples of absurd patents.

THOSE are the kind of arguments politicians understand.

Re:better arguments (1)

syncrus (539111) | more than 11 years ago | (#6832149)

Actually, the most important effect of having a patents system would be that most small software companies will not be able to live within the system, so that they are quite likely going to be absorved.

And then, there is that issue that is not spoken as much as it should be: open source stuff in a world of patents... And many European countries are embracing open source for their own use; maybe they are not aware enough of what patented software really means. :-(

I like touching kiddies (-1)

Suicide Bomberman (679592) | more than 11 years ago | (#6832059)

Can I log on [] to you?

Re:I like touching kiddies (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6832161)

How did you make your e-mail address say "I'm going to kill you"? That is totally cool.

MEP's?? (2, Interesting)

ZenBased (593709) | more than 11 years ago | (#6832070)

Hmmz.. i do want to say something to our representatives.. but how? and who is it? pfffrrrttt..

the 'fat boy' is singing.. (-1, Troll)

Anonymous Coward | more than 11 years ago | (#6832083)

& the corepirate nazis' puppets are chaNTing/refraining a chorus of 'wegottem', it's time again to reflect on the cluelessness that greed/fear/ego based 'training' leaves the evile wons with.

another round of phonIE ?pr? scriptdead 'the wwworld is safe from those awful 'hackers' again' MuSt be on order?

our lines are constantly busy, again, (talk about the feast/famine sindrone) from folks calling to have their systems disinfactdead from the whoreabull BugWear(tm) blight. leaves won to wonder, just how many 'fat boys' might there be, &/or, why anybody would want to pay to have that fauxking crud(tm) on their systems to begin with? we think that they were simply duped buy false advertising, bribery, coercion, etc...

lookout bullow. the daze of the whoreabull infactdead payper liesense stock markup fraud hostage taking ?pr? ?firm? FUDgePeddlers are #ed.

do consider having yOUR system(s) disinfactdead (just in case there's any more 'fat boys' with text editors out there), so as not to be distracted from the main task, which is planet/population rescue, as the lights come up.

EVERYTHING that the georgewellian corepirate nazi execrable/walking dead do, is designed (buy ?pr? ?firm? deception), to cause you to take yOUR eye off the ball.

thanks to you, it's not working very well anymore.

consult with/trust in yOUR creator. more breathing. vote with (what's left in) yOUR wallet. seek out others of non-aggressive/positive behaviours/intentions. that's the spirit.

pay no heed/money to the greed/fear based ?pr? ?firm? generated mindphukings of the walking dead.

good work so far. there's still much to be done. see you there. tell 'em robbIE? you're not won of them?

we see va lairIE's whoreabull pateNTdead PostBlock(tm) devise is still not working, yet.

a fate worse than debt (0)

Anonymous Coward | more than 11 years ago | (#6832145)

chortle if you whaaNT to. have you herd wad this "fat boy's" going through?

well first, there's home detention, which probably has left him heartbroken & hungry

next, no computing. that should solve most of the wwworld's saykrud kode infection 'problems'.

if that's not bad enough, imagine what he's going to do with all of his spare time, until he goes to/on 'fat boy' prison/probation? he'll likely just have to weight&weight.

At last it is revealed. (0)

Anonymous Coward | more than 11 years ago | (#6832099)

RMS is God and Salin is His prophet.

You are deceived brother! (0)

Anonymous Coward | more than 11 years ago | (#6832230)

RMS is not God.

GNU is God and RMS is his prophet.

Find out who your MEP is / how to contact them (1)

haedesch (247543) | more than 11 years ago | (#6832103)

You can order them by country / fraction on tition [] . If there is no e-mail addy listed, try their personal webpage, there's bound to be some sort of contact form.

Bring in peer review (2, Interesting)

Anonymous Coward | more than 11 years ago | (#6832104)

What needs to be changed:
- The length of software patents needs to be severely reduced, perhaps to 7 years or so. The IT industry moves too quickly.
- Patents should not be granted for overly broad or trivial ideas. I would say pretty well all software patents are trivial.
- The patent office has no incentive to reject patents. They should be held liable, and penalised, for incorrectly granted patents.
- Patents should be open to the public for peer review, since clearly the patent office is not capable of distinguishing an ingenious idea from a trivial one.

dlklskdlskd sdskadlk lk (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6832122)


YOU FAIL IT! (-1, Offtopic)

Anonymous Coward | more than 11 years ago | (#6832164)

At least, I think you failed it. I'm not quite sure what you were trying to do, though, so I can't say for sure.

That argument won't work! (5, Informative)

Serious Simon (701084) | more than 11 years ago | (#6832142)

The "free speech" card is useless in case of the proposed European Software Patents directive.

Article 5 of the proposal says:

Member states shall ensure that a computer-implemented invention may be claimed as a product, that is a programmed computer, a programmed computer network or other programmed apparatus, or as a process carried out by such a computer, computer network or apparatus through the execution of software
and this is explained on page 15:
... It should be noted that the proposal has not followed the practice of the EPO in permitting claims to computer program products either on its own or on a carrier, as this could be seen as allowing patents for computer programs 'as such'.
And on the bottom of page 7, it says
An abstract algorithm can be defined in terms of pure logic in the absence of any physical reference points. It is possible that such an algorithm may be put to practical use in many different functions in apparently unrelated domains, and may be capable of achieving different effects. Thus, an algorithm which is considered as a theoretical entity in isolation from the context of a physical environment, and in respect of which it is accordingly not possible to infer its effects, will be inherently non-technical and thus not susceptible of being regarded as a patentable invention.

It is a consequence of the above that an abstract algorithm as such cannot be monopolised. The normal rules for patentability mean that a patent claim to an invention which is founded on a particular algorithm would not extend to other applications of that algorithm.

The way I interpret this is that "free speech" objections to the proposal are effectively countered. The proposal denies patents on algorithms and on software 'as such'.

In other words, your rights to write and publish software are not affected (free speech), but you are not allowed to run any software that allegedly contains patented technology, without paying for a license!

I think the only useful (and powerful) objections to the directive are economic ones. Patents as allowed by this directive stifle innovation rather than promoting it, and can easily be abused for anti-competitive purposes. The directive allows over-broad patents that pose a risk to the software industry (although the "explanatory memorandum" sounds very reasonable, the actual articles of the directive provide hardly any limitation to the scope of software patents or guarantees that they are not too easily granted).

For example, the broader version of the "Amazon one-click patent" that was recently granted by the EPO, would be allowed by this directive.

In the long run, the negative effect on innovation would not even benefit the big software companies (who initially may profit from software patents as anti-competitive tools). It will only be profitable to a small group of patent lawyers (at the EPO) and a number of patent sharks, at the cost of the European citizen.

Read the proposed directive for yourself and shudder: prop/com02-92en.pdf

Incorrect URL (1)

Serious Simon (701084) | more than 11 years ago | (#6832155)

In my previous post, change "ind prop" to "indprop"

(I haven't figured out yet how to correctly post an URL on /. )

Re:Incorrect URL (1)

DGolden (17848) | more than 11 years ago | (#6832220)

Try the <a href="http://whereever/">example</a> tag. It works even in "plain old text" mode in slashcode.

Note also the "allowed html" notice at the bottom of the comment posting field...

The best explanation I have read (1)

l'Abruti (7394) | more than 11 years ago | (#6832168)

Once again comes from the FSF's Richard Stallman.
People interested in software patents should definitily read this [] and this [] .

It's a bit sad seeing how often RMS is right and how much abuse he gets from people who can find nothing else to criticize than his style.
Yes people, he is very blunt and unbending but that's okay because he is right!

viruses (0)

Anonymous Coward | more than 11 years ago | (#6832190)

So are viruses protected under this free speech? Or are we excluding those now?

my paper (1)

Combuchan (123208) | more than 11 years ago | (#6832192)

I wrote a 10-page paper this summer for my ENG102 class on the topic of software patents. Mostly historical information, but the works cited list is what I consider impressive. It's a first draft, with professional recommendations left out (note to self: procrastinate less).

The link is at: []


building pianos (1)

datrus (265707) | more than 11 years ago | (#6832200)

So why isn't building pianos freedom of speech also then?

The problem with patents (3, Insightful)

johvance (687783) | more than 11 years ago | (#6832201)

There, of course, is no reason that you shouldn't be allowed to make money of your invention. The real problem is the anti-competitive nature of the software patent. IBM holds a patent on a "list of words connected to business objects" which is basically every application including Excel, Word's "Font"-list or your browser's location bar.

Adobe has a patent on "floating palettes" for their toolbars. Macromedia has a patent on tabs.

If there was a consensus on how these patents would be handled, I could imagine a software patent law so inventions like RSA can be protected, but the way it is now, we make big software companies follow the RIAA's footsteps.

Imagine your a shareware developer and have a new and cool application. You make money of it, but suddenly Adobe can't sell its special Photoshop filter package anymore, because you do everything for $39.99. Suddenly, Adobe comes along and sues you, because they have a patent on buttons with grey borders. Even if they don't win, you're so broke you can't afford bread.

Imagine your a independant developer. You have a great new encryption algorithm and patent it. So you obiously have to publish it. It gets scrutinized by the cryptographic community and is found secure and ultra-fast. IBM implements it as part of its new java-crypto-webservice-thingy. You sue, because the patent grants you the right to license payments. Thing is... you have to sue in Denmark, France, Germany, the Netherlands, Belgium, the UK, Luxenburg, the Swiss, Spain... you get the idea. IBM eventually settles to patent your idea in the US. Suddenly you're so broke, you can't afford bread.

Anyone remember the american inventor of the "Sony" walkman? No? well, I thought so. He's so broke he can't afford bread. Sony's still making billions of his patent, which he couldn't enforce.

This system is so broken, there is no way you can fix it gradually. We're better off without allowing software patents for the moment. Really.

But the biggest joke hasn't been mentioned yet. The initiative comes from the UK and might work with the UK's laws. In Germany, if you are the managing director of a company with limited liability (AG or GmbH), you're not allowed to knowingly engage in any illegal activity. If you do so, you loose the protection of the law and therefor can be hold liable with everything you own. The problem: knowingly infringing on a patent is illegal in Germany. Therefor, if IBM sends me a cease and desist letter, claiming that I MIGHT infringe on one of their 3600 patents from last year, I must immediatly stop selling all potentially infringing products. If I don't do that, I might loose all my private belongings to satisfy IBM's damage claims... even though I have a registered company with "limited liability" about anti-competitive.

Computer programs are not generally writings (3, Interesting)

The Revolutionary (694752) | more than 11 years ago | (#6832204)

The author states, "Computer Programs are Writings." He compares computer programs to written essays. I believe that both his statement and comparision are generally incorrect.

Yes, there may some cases where this is so, such as might be entries in the "obfuscated C code contest". But this is very seldom what we are speaking of when we talk about "computer programs".

More so than it is similar to an essay, the computer program is similar to the collection of specific gears, sprockets, pins, and their particular arrangements which cause a machine to work in a useful and well-defined way. These parts, similarly, like components of computer programs, have yet more primitive components and specifications which provide for those at the higher level.

Perhaps a more useful example due to its comparative complexity is a clock.

That the analogy of gears, pins, sprokets and their arrangement, to software and the computer on which it runs, is successful, is illustrated by the case of the swapped watch internals.

Suppose that we have an existing mechanical clock. Now, suppose we take a duplicate watch casing, but inside we insert a "general purpose gear, ping, and sproket emulator". Like the computer, this device, in order to function in a useful manner, requires a set of instructions. Specifically, these instructions must instruct the emulator how to perform operations with equivalent results to those that were in our existing clock performed by real, rather than emulated gears, pins, and sprokets.

The success of the clockmaker is determined not by creativity in ordering or commentary on the natural world. Rather, success is measured by efficiency, and correctness. Optimality is measured (when it is computationally possible) by precise mathematical metrics. Correctness is determined not by asthetic appeal, creativity, or insight, but by nothing more than the solution being provably correct through the employment of established mathematical techniques. In fact, we might wonder what "correctness" should mean, if anything at all, in the context of an essay.

In the case of the computer program, creatvity or imagination are desirable not in the structure, choice, or ordering of the instructions, but rather in coming upon a correct solution or in visualizing the problem.

A source listing's utility is perhaps directly proportional to its lack of creativity.

The Low Road = Why Trust Gilmore ? (0)

Anonymous Coward | more than 11 years ago | (#6832213)

> On Wed, 13 Nov 1996, Dave Hayes wrote:
> > [This is a rebuttal to a misguided news article.]
> >
> > > Cypher-Censored
> > > By Declan McCullagh (
> >
> > Thank you for leaving your email address. It makes this easier.
> >
> > You people (read: the unaware and hypnotized masses, which includes
> > reporters who's desire for attention and political safety holds them
> > in line with the consensual illusion) keep missing the real issue, and
> > substituting issues which only hold themselves in place.
> >
> > [Those of you who know, please excuse the mediaistic terms used in
> > this rebuttal. One must use the symbols one is given to communicate
> > at the level of understanding of those who use them.]
> >
> > > Thus began a debate over what the concept of censorship means in a
> > > forum devoted to opposing it. Did Gilmore have the right to show Vulis
> > > the virtual door? Or should he have let the ad hominem attacks
> > > continue, encouraging people to set their filters accordingly? The
> > > incident raises deeper questions about how a virtual community can
> > > prevent one person from ruining the forum for all and whether only
> > > government controls on expression can be called "censorship."
> >
> > "Cyberspace" is interacted with using tools under the control of the
> > interactor.
> >

yes, and all you need is a simple mail filter.

> > In person-to-person interaction, one's only real defense against what
> > one decides to call "unwanted" is to remove oneself from the arena of
> > interaction. It may not be possible to ignore or run away from certain
> > sources of input.
> >
> > In cyberspace, however, it is not only possible but necessary and even
> > desirable. Cyberspace allows one to interact with many more people
> > then can fit in any given physical space. One simply -cannot- receive
> > input from 2000 people and not employ some sort of filtering
> > mechanism. Indeed, cyberspace has many buttons and switches (and even
> > programmatic filters) which allow one to -completely- control whom one
> > interacts with.
> >
> > Logically, we must conclude that those who frequently and repeatedly
> > cry for the censorship or removal of any source of input from
> > cyberspace are either:
> >
> > -quite clueless about the tools at their disposal
> > -ideologically or personally opposed to the source of input
> > or -in need of large amounts of attention from others
> >
> > Cluelessness can be overcome by appropriate teaching and interest in
> > learning (the latter issue we can safely assume users of popular but
> > ineffectual windowing OSes are not able to overcome). Such
> > cluelessness, however, is not and should never be a reason for
> > censorship.
> >
> > A need for attention can be overcome by refraining from the denial
> > that the need exists, followed by careful observation of that need.
> > More can be said on this, but this is not the forum. Such a need
> > is not and should never be a reason for censorship.
> >
> > Idelological opposition is another matter entirely. To understand this
> > better, we'll need to observe this in action. Here is an example:
> >
> > > Vulis portrays himself as a victim, but as I posted to the list
> > > last week, I disagree. Anyone who's spent any time on the
> > > 100-plus-messages-a-day list can read for themselves the kind of nasty
> > > daily messages that came from Vulis's keyboard.
> >
> > "Nasty" is, of course, by this reporter's standard of "nasty". Granted
> > this standard may in fact be shared by Mr. Gilmore, however a shared
> > standard is not necessarily an appropriate or correct standard.
> >
> > > The list is on Gilmore's machine and he can do what he wants with
> > > it; he can moderate the postings, he can censor material, he can
> > > shut the whole thing down. By kicking off an offending user, a
> > > list owner merely exercises his property right. There's no
> > > government involvement, so the First Amendment doesn't apply. And
> > > the deleted, disgruntled user is free to start his own mailing
> > > list with different rules.
> >
> > Notice how, once the opposition is admitted to, the rationalization
> > begins. Suddenly this is not a matter of censorship, but of ownership.
> > Just as suddenly, the classic anti-free-speech arguments of "if you
> > don't like it, start yer own" begin to surface. (Anyone ever notice
> > how this resembles the "love it or leave it" mentality of certain
> > American patriotic organizations?)
> >
> > What would ideological opposition be without the attempt at analogy?
> > Here we witness another example:
> >
> > > But then the question is whether Gilmore should have exercised
> > > that right, especially in such an open forum. Again, I think Gilmore's
> > > actions were justified. Consider inviting someone into your home or
> > > private club. If your guest is a boor, you might ask him to leave. If
> > > your guest is an slobbish drunk of a boor, you have a responsibility
> > > to require him to leave before he ruins the evening of others.
> >
> > Notice that the net is compared to a home or private club. Actually
> > the net is neither, however that would not serve the purposes of this
> > analogy, so this fact is convienently forgotton.
> >
> > The net is a wonderful place. Any ideology, no matter who disagrees or
> > agrees with it, can be expressed and discussed here...assuming those
> > who oppose this ideology do not have their way with the source of
> > expression. There is a more refined and deeper truth to be found
> > in the very existence of the set of all human ideologies, which is
> > just beginning to show itself to some netizens. Unfortunately, this
> > truth can be ruined when people equate some notion of value to
> > sources which ignore all but a tiny subset of the set of all ideologies:
> >
> > > Eugene Volokh, a law professor at UCLA, runs a number of mailing
> > > lists and has kicked people off to maintain better editorial control.
> > > Volokh says that the most valuable publications are those that
> > > exercise the highest degree of editorial control.
> >
> > Value to whom and for what? If the editorial control produces one
> > small element of the set of all ideologies, then this is only of value
> > to the people who support this ideology. Given that the set of
> > people who support an issue is smaller than the set of people
> > who support and oppose an issue, would the value not increase
> > by allowing both sides of an issue equal speaking time?
> >
> > > For his part, Gilmore calls removing the Russian mathematician "an
> > > act of leadership." He says: "It said we've all been putting up with
> > > this guy and it's time to stop. You're not welcome here... It seemed
> > > to me that a lot of the posts on cypherpunks were missing the mark.
> > > They seemed to have an idea that their ability to speak through my
> > > machine was guaranteed by the Constitution."
> >
> > It is sad to note that this is the leader of one of America's
> > forerunning organizations of freedom who says these words. For all
> > *his* ideology of free speech, this statement reveals the hypocrasy he
> > lives with for all to see. The true litmus test of free speech is to
> > encounter speech that you *want* to censor.
> >
> > Mr. Gilmore, and other like minded parties, might want to consider
> > what would happen if one parent company owned *all* communications
> > media. Would they they be so supportive of the ideology of ownership
> > and communciation they espouse?

Indeed. The EFF is a disgrace to the entire InterNet.
The EFF is definitely a censorship organization, and
it should never be trusted again.

> > ------
> > Dave Hayes - Altadena CA, USA -
> > Freedom Knight of Usenet -
> >
> > Truth (n.) - the most deadly weapon ever discovered by humanity. Capable
> > of destroying entire perceptual sets, cultures, and realities. Outlawed
> > by all governments everywhere. Possession is normally punishable by death.
> >
> >

The analogy is not entirely valid (2, Insightful)

heironymouscoward (683461) | more than 11 years ago | (#6832219)

Since software is rapidly becoming a material that can implement devices previously possible only in hardware. Consider a GSM for instance.

The problem with treating software as a creative work inherently different from material works is that this argument is quickly defeated, and indeed this is the basis for allowing software patents, for "devices implemented as software", as the EPTO put it once to me when I asked about it.

The real issue is not about differences between software and other materials such as metal and plastic. The real issue is about the basic concept of granting patents on inventions. There are domains where "invention" is a laborious and costly process and where a patent is the only protection that makes it worthwhile to proceed. Medicines is one such domain. But there are other domains where invention is a trivial and fundamental aspect of the work, and where protection is not just unnecessary, but counter-productive, and software sits at this extreme.

Most other domains, such as engineering, sit somewhere in the middle, and patents can be useful or harmful depending on the context.

Making software is not inherently different from any other form of invention, it is the scale and purpose which is different. Comparing software and music is interesting, but it looks to me as if music is simply the same process of invention, take one step further along the artistic line.

In other words: not only is this argument not going to work with legislators, but it may well set the grounds for future extension of patents into domains previously considered pure "art".

The only viable arguments against software patents must be based on solid economic calculations: all patents act against small innovators, concentrate power in the hands of monopolists, and software patents in particular are a serious and possible fatal impediment to the natural and beneficial development of a software industry.

Patents are instruments created by governments to allow their business buddies to monopolise interesting areas of business. Today, any argument against patents, software or not, has to be stated in terms of "benefit to the government", not philosophical arguments about pianos and music. Legislators don't give a rats ass about music.

The following makes no sense at all (1)

BillsPetMonkey (654200) | more than 11 years ago | (#6832249)

We should think player piano (patentable) vs the music (copyrightable but not patentable) it plays.

I'm not sure what this sentence means at all. Is it English? How did it get past the editors? Are the editors English?

close but no cigar (1)

night_flyer (453866) | more than 11 years ago | (#6832264)

a piano is an item, a piece of hardware that is patentable

a player piano, is a way of modiflying the above to make it do something, also patentable

The music it plays is copyrightable
a computer is an item, a piece of hardware that is patentable

a computer program, is a way of modiflying the above to make it do something, also patentable

The output it produces is copyrightable (documents)

Pictures from lobbying in Brussels (1)

Telex4 (265980) | more than 11 years ago | (#6832266)

For those who are interested, myself and a friend took some photos whilst in Brussels. We were lobbying MEPs in the European Parliament. tml []

Jim wrote one too. (1) (142825) | more than 11 years ago | (#6832267)

Jim Tyre wrote a brief on this [] for the DeCSS case which espouses a similar idea to Salin's letter. I don't recall that Salin's letter being mentioned mentioned in any of the DeCSS related or the CHBreak cases. I wonder if the PTO or anyone else has paid attention to it?

SCO (0)

Anonymous Coward | more than 11 years ago | (#6832268)

Of course software patents cause problems. SCO Group has used them to unleash legal hell on Linux. We can't say we haven't been warned [] .

I'd rather them be patents than copyrighted. (3, Insightful)

taliver (174409) | more than 11 years ago | (#6832282)

It would be _so_ much better if software was patented. Patents still expire in reasonably short amounts of time, and you could ensure that any software patent had to come with source. Then, after 14 years or so, you have gobs of open source software, as opposed to nearly a century (95 years as current US copyright goes).

Just a thought.

Patents? What about Copyright? (1)

werdna (39029) | more than 11 years ago | (#6832309)

This isn't your strongest argument against software patents. Despite decades of litigation in the arena of software patents now (actually, since the early 80's Diamond v. Diehr case), not a single first amendment case has been raised. In sharp contrast, there have been scads of First Amendment issues raised in copyright. Why?

This is easy. Software most certainly is expressive conduct, but it is also most certainly functional as well. Used in connection with a machine for the purpose of the machine's execution, the expressive element of the code is not as signficant as its utility. Used for the purpose of explaining or conveying an algorithm, the utility is not as significant as its utility.

It is the difference between discussing the making of a bomb, and the building and use of one. The courts have finally glommed expressly on this distinction -- it is time our community (even our zealotes) acknowledged it.

Back to copyright and patent. Copyrights, protect expressive works of authorship fixed in tangible media, and it does it by governing how the work is copied, distributed or modified! Patents, in contrast, govern only the making, using or selling of claimed processes. Utlimately, the protection of copyrights are far more invasive in the first amendment sense than are patents,. at least to the extent of limiting the expressive use, not functional uses of the code. And then, of course, we have the recent Bunner decision in California, where the Supreme Court found that where a trade secret is embodied in code, the first amendment is essentially trumped by disclosure of the ideas in the work.

Indeed, most patent claims do not govern expressive uses of the program writing itself, but rather only the methods embodied therein -- you probably don't infringe unless you use your writings in connection with a machine to use its function, not its expression.

That said, the previous sentence isn't completely true: under patent law, the use of text to contribute to or induce infringement by another might be actionable if you expressed yourself with the intent of having another use the code by way of infringement. Moreover, there are such things as Beauregard claims, claims that are directed to the code itself embodied in fixed medium -- and these might be infringed by copyright-like distribution. Finally, copyright, at least, has a fair use exception that captures many first amendment uses (although it has been found of little utility in the DeCSS cases for example).

Yet, the case has yet to happen where a plaintiff has really hit on a first amendment patent case, despite extensive first amendment litigation in the context of copyright and trade secrets. Why?

Several reasons, perhaps. It is hard to use patents, even beauregard claims, to shut down speech. The litigation advantages in trade secret and copyright are not present: it is very difficult to get preliminary injunctions in a patent case, the asset is seriously at risk each time it is asserted and it is VERY expensive to prosecute. Unlike copyright and trade secrets, the first amendment/patent interface might well be open territory for creation of a judge-made first amendment defense. Unlike copyright and trade secrets, the purposes of the patent can well be satisfied without a blatant first amendment invasion.

In short, the argument isn't unique, or even particularly applicable to patents -- it spans each and every limtiation on the distribution of code, ranging from copyright to trade secrets. To the extent code is code and expression, the threats of copyright and expansion of copyright into non-IP protection, like DMCA are far more dangerous to freedom of expression.

Patents vs. Copyrights (1)

Myxorg (528866) | more than 11 years ago | (#6832385)

What's so great about having a software patent vs. having a copyright on the software? I mean doesn't copyright effectively last forever, whereas patents expire within a reasonable time? With the DMCA in the USA and similar legislation being passed in EU (What's the status on that?) seems like companies may have more power with their copyright than with a patent.

Anyway, ot question if copyright is supposed to expire like 75 years after the original author dies (In the Usa) what about companies that claim they own the copyright to something, does that mean the copyright expires 75 years after the company dies? It's not like a company inevitably dies, anyway I was just randomly thinking about that cause I just woke up and I'm stupid.
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