A discussion of software intellectual property, inevitably drifting into a discussion of software patents, and their impact on free or "open" software.
Subject: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Tue, 04 Aug 1998 17:58:04 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 26 Information at http://opensource.oreilly.com/townmeet.html Pamela Samuelson is a highly respected leading, if controversial, intellectual property (IP) scholar who has criticized existing copyright and patent protection of software. She argues for sui generis -- special case -- IP protections for software and is the author of several significant articles on this topic. She has a website with bibliographic and biographic information, as well as a selection of papers at http://www.sims.berkeley.edu/~pam/ I'm thrilled to see her included as a panelist in the upcoming Open Source Town Meeting, Friday, August 21, 5-6:30 p.m. at the Fairmont Hotel in San Jose, California ($10 admission). Kudos to O'Reilly and/or responsible parties for arranging this. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:41am up 52 days, 8:10, 3 users, load average: 1.12, 1.14, 1.17
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Tue, 4 Aug 1998 21:36:49 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6q8nc2$8n8$1@camel25.mindspring.com> References: <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 15 Karsten M. Self wrote in message <35C74BAC.547245AC@ix.netcom.com>... >Information at http://opensource.oreilly.com/townmeet.html > >Pamela Samuelson is a highly respected leading, if controversial, >intellectual property (IP) scholar who has criticized existing copyright >and patent protection of software. She argues for sui generis -- If you attend, you should realize that her views are way out on the fringe, legally. She has written articles against all patent protection of software, and against all copyright protection of object code.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 05 Aug 1998 00:43:46 -0700 From: Bruce Hayden <bhayden@uswest.net> Message-ID: <35C80D32.C7F5795F@uswest.net> References: <6q8nc2$8n8$1@camel25.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 52 Roger Schlafly wrote: > Karsten M. Self wrote in message <35C74BAC.547245AC@ix.netcom.com>... > >Information at http://opensource.oreilly.com/townmeet.html > > > >Pamela Samuelson is a highly respected leading, if controversial, > >intellectual property (IP) scholar who has criticized existing copyright > >and patent protection of software. She argues for sui generis -- > > If you attend, you should realize that her views are way out on > the fringe, legally. She has written articles against all patent > protection of software, and against all copyright protection > of object code. My view is somewhat similar. Though I respect her and her accomplishments, I will also say that I have gotten into some very heated software copyright debates with her in particular in the cni-copyright list, where she seemed to drop out after "losing" (in my mind) rather badly to the other copyright profs in that list. In any case, my special criticism though is directed towards her position on software patents. If you read at least the older versions of her Manifesto, I think that you can best describe her position as not having a clue as to what is patentable and what is not as far as software is concerned. Of course, the Manifesto can best be seen as a sales tool for her version of sui generis software protection legislation. The result there is arguably a slanted view of both software copyright and patent law, slanted to sell the need for sui generis legislation. But of course, I disagree with the Manifesto to a very great extent. I find the combination of copyright and patent protection more than sufficient to protect software adequately. Indeed, I would suggest that many in this forum consider patent protection too strong for software, instead of not strong enough, as argued by Prof. Samuelson. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 05 Aug 1998 18:03:44 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C89E80.1745356F@ix.netcom.com> References: <35C80D32.C7F5795F@uswest.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 66 Bruce Hayden wrote: > > Roger Schlafly wrote: > > > Karsten M. Self wrote in message <35C74BAC.547245AC@ix.netcom.com>... > > >Information at http://opensource.oreilly.com/townmeet.html > > > > > >Pamela Samuelson is a highly respected leading, if controversial, > > >intellectual property (IP) scholar who has criticized existing copyright > > >and patent protection of software. She argues for sui generis -- > > > > If you attend, you should realize that her views are way out on > > the fringe, legally. She has written articles against all patent > > protection of software, and against all copyright protection > > of object code. > > Of course, the Manifesto can best be seen as a sales > tool for her version of sui generis software protection > legislation. The result there is arguably a slanted view of > both software copyright and patent law, slanted to sell > the need for sui generis legislation. > > But of course, I disagree with the Manifesto to a very > great extent. I find the combination of copyright and > patent protection more than sufficient to protect > software adequately. Indeed, I would suggest that > many in this forum consider patent protection too strong > for software, instead of not strong enough, as argued > by Prof. Samuelson. Even I will admit to being a bit mystified by the Manifesto. Having started with her earlier paper, "CONTU Revisited" (Duke Law Journal c. 1984), which challenged the legal arguments for covering software under copyright, I'd gathered she generally felt that SW IP was headed for overprotection, and needs its own form of IP to correct this. The Manifesto makes the opposite case, a decade later -- SW IP is underprotected and needs its own form of IP to correct this. Me, I'm just sitting in the middle, confused. I have to agree with the logical consistancy of many of the arguments made in "CONTU". OTOH, copyright seems to serve the needs of Open Source Software (OSS) very well, as for example in the GPL and other OSS licenses, so I won't complain too loudly. I am beginning to convince myself that OSS will prevail over patent by similar mechanims -- working within the existing law to protect itself from proprietary appropriation *and* patent challenge. Hopefully this will make both the lawyers and the programmers breath easier. The Manifesto, interestingly, comments on the quantity and quality of "freeware" available in the SW world, though it doesn't make a major point of the issue. > Bruce E. Hayden bhayden@uswest.net -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:51am up 53 days, 8:20, 3 users, load average: 1.05, 1.23, 1.14
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 5 Aug 1998 13:48:11 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qageq$vtk$1@samsara0.mindspring.com> References: <35C89E80.1745356F@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 21 Karsten M. Self wrote in message <35C89E80.1745356F@ix.netcom.com>... >Even I will admit to being a bit mystified by the Manifesto. Having >started with her earlier paper, "CONTU Revisited" (Duke Law Journal c. >1984), which challenged the legal arguments for covering software under >copyright, I'd gathered she generally felt that SW IP was headed for >overprotection, and needs its own form of IP to correct this. The >Manifesto makes the opposite case, a decade later -- SW IP is >underprotected and needs its own form of IP to correct this. Me, I'm >just sitting in the middle, confused. The argument for sui generis seems to depend on the claim that software is qualitatively different from other technologies. And yes it is, in some ways. But if this justifies sui gen, then it seems much easier to make the case that other technologies are different, and should have sui gen. Eg, genetic engineering, other biotech, integrated circuits, drugs, etc. Are there also law professors making a career out of arguing for sui generis protection of gene sequences?
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 06 Aug 1998 06:02:23 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35C946EF.975FB3D2@ix.netcom.com> References: <6qageq$vtk$1@samsara0.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 47 Roger Schlafly wrote: > > Karsten M. Self wrote in message <35C89E80.1745356F@ix.netcom.com>... > >Even I will admit to being a bit mystified by the Manifesto. Having > >started with her earlier paper, "CONTU Revisited" (Duke Law Journal c. > >1984), which challenged the legal arguments for covering software under > >copyright, I'd gathered she generally felt that SW IP was headed for > >overprotection, and needs its own form of IP to correct this. The > >Manifesto makes the opposite case, a decade later -- SW IP is > >underprotected and needs its own form of IP to correct this. Me, I'm > >just sitting in the middle, confused. > > The argument for sui generis seems to depend on the claim that > software is qualitatively different from other technologies. And yes > it is, in some ways. But if this justifies sui gen, then it seems much > easier to make the case that other technologies are different, > and should have sui gen. Eg, genetic engineering, other biotech, > integrated circuits, drugs, etc. Are there also law professors making > a career out of arguing for sui generis protection of gene sequences? IC *got* sui generis protection with the SCPA (chip mask copyrighting statute, 17 U.S.C. 409). Most scholars, Samuelson included, argue that the was neither a "good" extension of copyright protection, nor necessary for protection of IC technology. I can't dig up a cite, but I believe she's written that the SCPA never resulted in a copyright infringement case. Note also that SCPA protection is for two years for unregistered works, ten for registered. This is far shorter than the life + 50 years or 75 years of protection granted authors and corporations respectively under ordinary copyright. I'm much less familiar with patent, but I believe biologicals have their own patent type. I'm not sure if this applies to bred plant species only or to biotechnology "inventions" in general. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 10:51pm up 53 days, 20:20, 2 users, load average: 1.06, 1.08, 1.03
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 05 Aug 1998 23:52:29 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35C952AD.F84D230A@ieee.org> References: <6qageq$vtk$1@samsara0.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc,gnu.misc.discuss Lines: 29 Roger Schlafly wrote: > The argument for sui generis seems to depend on the claim that > software is qualitatively different from other technologies. And yes > it is, in some ways. But if this justifies sui gen, then it seems much > easier to make the case that other technologies are different, > and should have sui gen. Eg, genetic engineering, other biotech, > integrated circuits, drugs, etc. Are there also law professors making > a career out of arguing for sui generis protection of gene sequences? And of course the example used for sui generis is semiconductor mask protection. It was obsolete almost from the date passed. Yes, there is sui generis protection available for integrated circuits. But it is today almost useless, if for no other reason that it is nearly impossible today to reconstruct a mask from an IC, esp. at the higher densities. Partly, this is because the etching wavelength is the same order of magnitude as the feature size. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 07 Aug 1998 18:45:18 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CB4B3E.36C1CF57@ix.netcom.com> References: <6qfg66$smo$1@camel29.mindspring.com> <6qf6an$cgv$1@csnews.cs.colorado.edu> <6qageq$vtk$1@samsara0.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 77 Roger Schlafly wrote: > The idea is that when copyright and patent laws were conceived eons > ago, no one could have anticipated changes in technology and > society that have revolutionized the nature of the products being > protected. Copyright protection is pretty much the same whether > the work is a novel, painting, movie, or computer program. > > P. Samuelson takes the position that software is radically different, > and requires special copyrights. She really wants much weaker > software copyrights because she is sympathetic to the "free > software" view of the world in which people who sell object code > only are evil. That's not quite my read. - Samuelson argues that SW is radically different from other copyrighted works. - She argues both that SW doesn't fit well within the copyright model, and that copyright offers little or no effective IP protection to SW. SW doesn't fit copyright because copyright is designed to control publication while disseminating knowledge. SW uses copyright to control appropriation while disseminating product. Fair Use exceptions have emerged as the vehicle under which reverse engineering can occur, but it's still a bit messy, in my book. IP provides no effective IP protection to SW because SW caries its IP "on its face" -- once reverse engineering has occured, the whole idea is presented, and the idea is not protected by copyright, only the expression of the idea. - She argues that patent doesn't work well either for a number of reasons, including that it's too restrictive (17 years is for f------ ever in SW), too expensive, too slow (2-3 years for approval), and too hard to approve and ensure against infringement based on prior art and existing patents. Search mechanisms for both are apparently atrocious. - Her latest work on the subject, "A Manifesto Concerning the Legal Protection of Computer Programs", 94 Columbia Law Review p 2308 (1994), argues that SW IP goes through periods of both over and under protection, based on copyright and patent, and that it really wants its own protection. The "Manifesto" reads to me as much more strong IP than her earlier "CONTU Revisited" (Duke L.J. 1984) which reviewed the original SW copyright act and history. Though Samuelson has mentioned freeware and shareware (see Manifesto, p 2377), I haven't seen an unambiguous statement concerning her feelings on the subject. Her appearance on the OSS panel is very interesting for this reason. AFAIK, much of her recent work has concerned WIPO, the various White and Green papers, and 2B. I suspect these will be the substance of her remarks at the Open Source Open House, though I've suggested to her that she address the issues of copyright and patent as well. Given the entire forum is 90 minutes and there are some half-dozen panelists, I doubt she'll have time for in-depth coverage of one topic, let alone three. The Q&A should be interesting though. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 11:31am up 55 days, 9:00, 2 users, load average: 1.17, 1.24, 1.10
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 7 Aug 1998 12:44:00 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qflee$rni$1@camel29.mindspring.com> References: <35CB4B3E.36C1CF57@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 47 Karsten M. Self wrote in message <35CB4B3E.36C1CF57@ix.netcom.com>... > - Samuelson argues that SW is radically different from other >copyrighted works. > > - She argues both that SW doesn't fit well within the copyright model, >and that copyright offers little or no effective IP protection to SW. > >SW doesn't fit copyright because copyright is designed to control >publication while disseminating knowledge. SW uses copyright to control >appropriation while disseminating product. Fair Use exceptions have >emerged as the vehicle under which reverse engineering can occur, but >it's still a bit messy, in my book. And do movies, music records, and artwork fit copyright? This distinction seems bizarre to me. >IP provides no effective IP protection to SW because SW caries its IP >"on its face" -- once reverse engineering has occured, the whole idea is >presented, and the idea is not protected by copyright, only the >expression of the idea. Now this is really absurd. How does she think Microsoft and Oracle make their money? > - She argues that patent doesn't work well either for a number of >reasons, including that it's too restrictive (17 years is for f------ >ever in SW), too expensive, too slow (2-3 years for approval), and too >hard to approve and ensure against infringement based on prior art and >existing patents. Search mechanisms for both are apparently atrocious. A lot of other fields have similar complaints against patents. Nothing unique about SW here. > - Her latest work on the subject, "A Manifesto Concerning the Legal >Protection of Computer Programs", 94 Columbia Law Review p 2308 (1994), >argues that SW IP goes through periods of both over and under >protection, based on copyright and patent, and that it really wants its >own protection. The "Manifesto" reads to me as much more strong IP than >her earlier "CONTU Revisited" (Duke L.J. 1984) which reviewed the >original SW copyright act and history. Sounds like it would be more accurate to say that it is her own views which have oscillated.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 8 Aug 1998 02:04:32 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qh4bb$1vs$1@camel29.mindspring.com> References: <35CBF4CC.18894597@ix.netcom.com> <6qflee$rni$1@camel29.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 50 Karsten M. Self wrote in message <35CBF4CC.18894597@ix.netcom.com>... >None of these are utilitarian works, Samuelson's main argument. All >carry, or reveal immediately when played, viewed, watched, whatever, >their content. Publishers of records, producers of films or sculptors >of artwork don't seek to keep the buyer of a copy of the work from >examining it in complete detail. Software -- object code -- by >contrast, requires detailed examination and mechanical processing to >divulge its meaning. A sculptor doesn't necessarily reveal his techniques, nor is it obvious from the sculpture. Likewise for many other works. I find this distinction unpersuasive. >> >IP provides no effective IP protection to SW because SW caries its IP >> >"on its face" -- once reverse engineering has occured, the whole idea is >> >presented, and the idea is not protected by copyright, only the >> >expression of the idea. >> >> Now this is really absurd. How does she think Microsoft and >> Oracle make their money? > >Copyright protects against direct copying of software -- I can burn a >CD-ROM and sell it, but not legally. Copyright does not prevent me from >figuring out how a program works and utilizing the ideas in my own >creation. This takes time. You are not answering the question. If PS says that SW has no effective IP protection, then she is an idiot. The IP protection is strong enough for Microsoft and Oracle to make billions of dollars. >I said there was? No, I said that Samueson doesn't think patent does a >good job with software. Just because my grass is green doesn't mean >yours is or isn't. She is not a patent attorney, and is in over her head on this subject. It is useless to complain about SW patents when other patents have the same problems. > Software currently has far less protection under >court interpretation of copyright than it did in 1984. See Lotus v. >Borland, Sega v. Accolade, Atari v. Nintendo. It sounds like you have been listening to Greenberg. You and he are wrong about this. Those decisions did not reverse existing law. SW copyright protection is every bit as strong now as it was in 1984.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 08 Aug 1998 19:45:28 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CCAAD8.22B95A6A@ix.netcom.com> References: <6qh4bb$1vs$1@camel29.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 130 Roger Schlafly wrote: > > Karsten M. Self wrote in message <35CBF4CC.18894597@ix.netcom.com>... > >None of these are utilitarian works, Samuelson's main argument. All > >carry, or reveal immediately when played, viewed, watched, whatever, > >their content. Publishers of records, producers of films or sculptors > >of artwork don't seek to keep the buyer of a copy of the work from > >examining it in complete detail. Software -- object code -- by > >contrast, requires detailed examination and mechanical processing to > >divulge its meaning. > > A sculptor doesn't necessarily reveal his techniques, nor is it obvious > from the sculpture. Likewise for many other works. I find this > distinction unpersuasive. Nor does a book reveal the bookbinding techniques. The protection granted by copyright for a book, a sculture, a musical work, or an architectural design is for the *expression* of the work, not the construction of the work. A sculptor's copyright does not protect his techniques. An author's copyright does not protect her research methods. An architect's copyright protects neither her drafting methods nor construction techniques. Red herring. As I see it, most software produces a number of artifacts (I'm speaking of produced or derived objects, outside the scope of copyright): - Design documentation (schemas, notes) - Source code - Object code - Runtime instance -- interaction of OC with dynamic libraries, other environmental factors, runtime images in RAM, cache, VM, etc. - Runtime actions, data, text, displays, screens, audio, visual, or other outputs (will vary by type of program, some or all may not be applicable). - Latent outputs -- permanent data output, hardcopy, email, etc. The copyright dilemma (I'm not saying flaw, I'm not saying fatal error, I'm saying dilemma) is this: - It is the runtime actions of a program, and the latent outputs, which are the valuable attributes of a program. All else is overhead. - It is the source code which provides the ultimate "design document" of the program. This is pretty arguably a "literary work". However it is the object code which directly enables a runtime instance. The argument that object code is itself a literary work is weakened by the near total impossiblity to gain meaningful information by direct reading of the object code. Returning to the argument: So if "source code" is techniques, and "object code" is a "derived work" of source, if both are covered under copyright, and if object code is published and distributed, why should copyright protection cover anything other than the *expression* of technique under software. The law has held that it does not (Sega v. Accolade), and that reverse engineering for purposes of identifying methods and mechanisms. To restate: software carries its technological content near its face. This technology is readily discoverable. Copyright cannot legally provide a bar to discovering this content by 17 U.S.C. 102(b) (utilitarian exemption) and 107 (fair use). Much of the legal history is the story of copyright holders seeking strong IP protection against alleged infringers seeking week IP protection under copyright. The current status is that gross appropriation is considered infringing, but reverse engineering is allowed. > >> >IP provides no effective IP protection to SW because SW caries its IP > >> >"on its face" -- once reverse engineering has occured, the whole idea is > >> >presented, and the idea is not protected by copyright, only the > >> >expression of the idea. > >> > >> Now this is really absurd. How does she think Microsoft and > >> Oracle make their money? > > > >Copyright protects against direct copying of software -- I can burn a > >CD-ROM and sell it, but not legally. Copyright does not prevent me from > >figuring out how a program works and utilizing the ideas in my own > >creation. This takes time. > > You are not answering the question. If PS says that SW has no > effective IP protection, then she is an idiot. The IP protection is > strong enough for Microsoft and Oracle to make billions of dollars. Let me change history. I meant to write "Copyright provides no effective IP protection...CRYPHTML.HTM" This is true in law and in fact. The fact that the industry thrives despite this lack might be a good argument that the weak protections curretnly provided are sufficient. > >I said there was? No, I said that Samueson doesn't think patent does a > >good job with software. Just because my grass is green doesn't mean > >yours is or isn't. > > She is not a patent attorney, and is in over her head on this subject. > It is useless to complain about SW patents when other patents > have the same problems. The fact is that she thinks patent doesn't fit SW well. You can agree or disagree. You can say other areas of IP have similar problems. If the problem is alledged for SW, you can provide confirming or counter evidence to support her views, or evidence that she's unqualified to hold an informed opinion. I was simply correcting your gross misstatements of her views. > > Software currently has far less protection under > >court interpretation of copyright than it did in 1984. See Lotus v. > >Borland, Sega v. Accolade, Atari v. Nintendo. > > It sounds like you have been listening to Greenberg. You and he > are wrong about this. Those decisions did not reverse existing > law. SW copyright protection is every bit as strong now as it > was in 1984. Compare and contrast Lotus v. Borland and Lotus v. Paperback. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 12:11pm up 56 days, 9:40, 2 users, load average: 1.19, 1.18, 1.11
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 01:59:22 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CD027A.4240A826@ix.netcom.com> References: <6qijtg$vm0$1@camel25.mindspring.com> <35CCAAD8.22B95A6A@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 79 This is my final post in this thread. Roger Schlafly wrote: > > Karsten M. Self wrote in message <35CCAAD8.22B95A6A@ix.netcom.com>... > >Nor does a book reveal the bookbinding techniques. The protection > >granted by copyright for a book, a sculture, a musical work, or an > >architectural design is for the *expression* of the work, not the > >construction of the work. A sculptor's copyright does not protect his > >techniques. An author's copyright does not protect her research > >methods. An architect's copyright protects neither her drafting methods > >nor construction techniques. Red herring. > > Right. Same for software. What's your beef? If you want to review my previous arguments, which is where the beef is, then re-read the posts. Don't ask stupid questions. > >Let me change history. I meant to write "Copyright provides no > >effective IP protection...CRYPHTML.HTM" This is true in law and in fact. > > I've tried to be patient with you, but anyone who would say that > is just idiot. Have you ever heard of Bill Gates? He is America's > richest man. He got there using the effective IP protection that > he got from copyright law. Which would argue that existing IP protections, weak or strong, are sufficient to foster creation of an industry in which one man may amass a wealth of $50 billion. Bill got to where he is by several means. Marketing is a word I hear frequently. The IP-is-the-source-of-Bill's-wealth school has few adherants. > >> > Software currently has far less protection under > >> >court interpretation of copyright than it did in 1984. See Lotus v. > >> >Borland, Sega v. Accolade, Atari v. Nintendo. > >> > >> It sounds like you have been listening to Greenberg. You and he > >> are wrong about this. Those decisions did not reverse existing > >> law. SW copyright protection is every bit as strong now as it > >> was in 1984. > > > >Compare and contrast Lotus v. Borland and Lotus v. Paperback. > > Lotus won both in district court with a judge who tried to stake out > new law with his opinion. His novel interpretation of copyright > was never accepted and reversed on appeal. The main > difference is that Paperback settled the case before appealing. Lotus won in Paperback (the other side capitulated). Mid-late 1980's. Lotus lost in Borland, early 1990's. Claim was roughly the same -- different source code gave rise to similar programs (Paperback was a near total clone, Borland had a menu/function compatibility mode). Samuelson cites the Whelan v. Jaslow case as the high water of strong copyright SW IP protection. Lotus v. Borland, Sega v. Accolade, and CA v. Altai have significantly weakened the level of protection afforded by copyright. Borland said that program elements may be duplicated without infringement, Accolade that reverse engineering is allowable under Fair Use, and Altai that AFC was the means for seperating copyrightable expression from non-copyrightable ideas in a program. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 6:31pm up 56 days, 16:00, 3 users, load average: 2.06, 2.02, 2.00
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 14:24:01 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0908981424010001@tstpa1-61.gate.net> References: <35CD027A.4240A826@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 55 In article <35CD027A.4240A826@ix.netcom.com>, kmself@ix.netcom.com wrote: > Roger Schlafly wrote: > > >Let me change history. I meant to write "Copyright provides no > > >effective IP protection...CRYPHTML.HTM" This is true in law and in fact. > > > > I've tried to be patient with you, but anyone who would say that > > is just idiot. Have you ever heard of Bill Gates? He is America's > > richest man. He got there using the effective IP protection that > > he got from copyright law. Indeed, Copyright protection of the literal expression (meaning byte-for-byte copying) has been unchanged through the ages -- it is difficult to pirate Microsoft's works of authorship without committing Copyright infringement, and that hasn't changed substantially over the years. However, it is plain beyond cavil to any serious student of this area of law that the scope of non-literal infringement has diminished dramatically over the past twenty years. Indeed, it has diminished in some jurisdictions to practically nothing. (See the last three 11th Circuit opinions on the subject, adopting a "virtual identity" test for certain types of non-literal software infringement). Roger's patience is irrelevant. He is a foolish, boorish man who doesn't really know what to do but exercise gainsay to forward his particular ideologies as to what the law "should" be. Karsten accurately represents what most writers consider to be the state of the law, for the reasons and authority set forth in Karsten's postings (not responded to on the merits by Roger) and Roger's gainsay, however often he might repeat it, cannot change that fact. I have noted in Karsten's postings (I no longer read Roger's -- he is one of a select few whose signal-to-noise ratio is so low as to earn a spot on my bozo list), it appears Roger made a number of truthful and accurate, at times, salient points throughout this colloquy. This wasn't one of them. Readers looking for a credible gaff-o-meter can generally know when Roger is trolling by the fact that he (1) begins ad hominems and repeates them; and (2) stops actually arguing on the merits. Readers should simply ignore Mr. Schlafly's remarks in this regard. He simply doesn't have a clue what he is talking about. The contrary position is well-recognized by those who routinely deal in this arena or have educated themselves as to what actually is the law. A recent National Law Journal article discussing the ever-diminishing importance of copyrights as an arrow in the software IP quiver (for non-literal infringement) can be found at: http://www.ljextra.com/practice/computer/0420softpat.html -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 14:05:21 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0908981405210001@tstpa1-61.gate.net> References: <35CCAAD8.22B95A6A@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 31 In article <35CCAAD8.22B95A6A@ix.netcom.com>, kmself@ix.netcom.com wrote: > Roger Schlafly wrote: > > > Software currently has far less protection under > > >court interpretation of copyright than it did in 1984. See Lotus v. > > >Borland, Sega v. Accolade, Atari v. Nintendo. > > > > It sounds like you have been listening to Greenberg. You and he > > are wrong about this. Those decisions did not reverse existing > > law. SW copyright protection is every bit as strong now as it > > was in 1984. > > Compare and contrast Lotus v. Borland and Lotus v. Paperback. Gentle readers will notice the difference between the reasonable (albeit misguided but anxious to study and learn IMHO :-) ) poster, Mr. Self, who has produced now at least five distinct authorities, and the trolling demagogue, whose sole argument comprises an ad hominem attack and naked assertion of correctness. Roger has no education or credentials in copyright law to speak of, and by his remarks and comments in this newsgroup throughout the years, one can reasonably conclude his understanding of these areas of law is nominal to weak. In short, Roger can be relied to come up with whatever argument suits his current political views, regardless of what the law may be. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 08 Aug 1998 08:56:49 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0808980856490001@tstpa1-18.gate.net> References: <35CBF4CC.18894597@ix.netcom.com> <6qflee$rni$1@camel29.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 166 In article <35CBF4CC.18894597@ix.netcom.com>, kmself@ix.netcom.com wrote: > Roger Schlafly wrote: > > > > Karsten M. Self wrote in message <35CB4B3E.36C1CF57@ix.netcom.com>... > > > You'd made a statement on Samuelson's views. I disagreed, gave my take > on her position. Her position and the reasons for it, she'd have to > answer for. > > > > > - Samuelson argues that SW is radically different from other > > >copyrighted works. > > > > > > - She argues both that SW doesn't fit well within the copyright model, > > >and that copyright offers little or no effective IP protection to SW. > > > > > >SW doesn't fit copyright because copyright is designed to control > > >publication while disseminating knowledge. SW uses copyright to control > > >appropriation while disseminating product. Fair Use exceptions have > > >emerged as the vehicle under which reverse engineering can occur, but > > >it's still a bit messy, in my book. > > > > And do movies, music records, and artwork fit copyright? > > This distinction seems bizarre to me. > > None of these are utilitarian works, Samuelson's main argument. Define "utilitarian." Does it extend to factual accounts and non-fiction? Are my computer games "utilitarian?" Here is where Paula's arguments begin to fall on their own weight. [Be prepared for a discussion of architectural works.] > All > carry, or reveal immediately when played, viewed, watched, whatever, > their content. Publishers of records, producers of films or sculptors > of artwork don't seek to keep the buyer of a copy of the work from > examining it in complete detail. Software -- object code -- by > contrast, requires detailed examination and mechanical processing to > divulge its meaning. That's, at most, a distinction without a difference. Many works are perceived not by the expression directly, but by the "execution" of the expression. Records and tape recordings, written music, written dance recordations, scripts, screenplays. Noone purchasing and using software CARES about the particular expressions of the mechanical object code/binary format for recording the record/use of notation to relate music or dance or theatrical and stage dirctions -- what they enjoy is the execution of those things. > > >IP provides no effective IP protection to SW because SW caries its IP > > >"on its face" -- once reverse engineering has occured, the whole idea is > > >presented, and the idea is not protected by copyright, only the > > >expression of the idea. > > > > Now this is really absurd. How does she think Microsoft and > > Oracle make their money? > > Copyright protects against direct copying of software -- I can burn a > CD-ROM and sell it, but not legally. Copyright does not prevent me from > figuring out how a program works and utilizing the ideas in my own > creation. This takes time. This is nonresponsive to the poster's point, which is that IP, particularly copyright, provides very effective protection indeed for the copyright owner's expression. Otherwise, Microsoft would not be as financially well-endowed as many nations. > > > - She argues that patent doesn't work well either for a number of > > >reasons, including that it's too restrictive (17 years is for f------ > > >ever in SW), too expensive, too slow (2-3 years for approval), and too > > >hard to approve and ensure against infringement based on prior art and > > >existing patents. Search mechanisms for both are apparently atrocious. > > > > A lot of other fields have similar complaints against patents. Nothing > > unique about SW here. > > I said there was? No, I said that Samueson doesn't think patent does a > good job with software. Just because my grass is green doesn't mean > yours is or isn't. Right, but its a valid point anyhow. The speed of the system and its length of term is the same for every art group -- yet patents work great with the others. Software needs first to be distinguished from those other groups before the argument can be meaningful. Again, we need to consider whether the argument being made is: (1) patents are bad; (2) software patents are bad; or (3) bad software patents are bad. If this is a (1) argument, its fairly laughable because the patent system works just great and demonstrably so. If this is a (2) argument, a huge jump was taken without explanation -- why are these issues unique o software? > > > - Her latest work on the subject, "A Manifesto Concerning the Legal > > >Protection of Computer Programs", 94 Columbia Law Review p 2308 (1994), > > >argues that SW IP goes through periods of both over and under > > >protection, based on copyright and patent, and that it really wants its > > >own protection. The "Manifesto" reads to me as much more strong IP than > > >her earlier "CONTU Revisited" (Duke L.J. 1984) which reviewed the > > >original SW copyright act and history. > > > > Sounds like it would be more accurate to say that it is her own views > > which have oscillated. > > Ask her. I'm a bit puzzled. Her second line is consistant with the > first, in context. Software currently has far less protection under > court interpretation of copyright than it did in 1984. See Lotus v. > Borland, Sega v. Accolade, Atari v. Nintendo. If what she is saying is that the scope of IP protection takes some time to adjust for emerging technology, and this means that the emerging technology requires sui generis protection, she's got a VERY weak argument. This oscillation of protection is true FOR EVERY NEW ART AREA AS A MATTER OF COURSE. IP Laws are designed to be broad and flexible -- to adapt to changes in the embodiments of their respective subject matter. And yes, this takes time. But the protection didn't realy change -- just the "betting odds" on how it would shake out. "Look and Feel" was never the law, just an optimistic sense as to where some overreadings of dicta in some New England opinions might lead. AFC was proposed long ago, but the basic principles of law have not changed. As the cases developed, we knew more clearly where the law was, and what were safe harbors not worth litigating in the future, but so what? And please note, the changes were not changes adapting to the unique nature of software, in my view, but rather changes RECOGNIZING HOW SOFTWARE WAS NOT DIFFERENT. AFC is simply an application of well-understood case law dealing with movies and plays to software, not some change in the law to accomodate the differences between software and all other works. I believe the present cases are actually settling into the idea that software really ISN'T all that different from other subject matter (for example as the "look and feel" approach would have required; nothign else is protected that way), not that it is fundamentally different. Moreover, why change NOW? What makes us think that we have a comprehension today of this area of law that justifies making a change -- when market conditions and technologies are just as likely to be different at tht time the bill is passed (just as happened in seminconductor masks)? Adding a new body of law simply makes it more expensive to get relief, and will require yet another two decades before there is any certainty as to what the statutes would mean. Having warred out the meanings of new statutory langauge in the face of no decided case law, trust me, new law, however clearly written will cost MILLIONS in fees before it is "sorted." I believe that the idea of sui generis protection is by itself very dangerous, even if the law is better than the status quo in theory. Without getting to the merits, what of the chaos and uncertainty that will ensue? Yes, this is a highly conservative position, but after studying Copyright Law since the 70's and seeing it evolve, I wouldn't want to give up the certainty we now have as to how to govern our conduct for anything. Paula wants to make a change, but she doesn't really say why change is necessary. She observes the fit between patents, copyrights and software isn't perfect. True, but when is the "fit' perfect? The question is whether it is doing its job. I don't see the schrapnel falling that the critics claimed would happen -- none of it. I do, however, see a lot of good arising from software IP. It would take a compelling argument, not a whine about aesthetic objections or a laundry list of relatively insignificant difference, to lead me to think new legislation is called for or justified. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sat, 08 Aug 1998 20:23:57 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CCB3DD.9F1EB9BE@ix.netcom.com> References: <werdna-0808980856490001@tstpa1-18.gate.net> Newsgroups: misc.int-property,misc.legal.computing,gnu.misc.discuss Lines: 191 Andrew C. Greenberg wrote: Let me start at the end: > If what she is saying is that the scope of IP protection takes some time > to adjust for emerging technology, and this means that the emerging > technology requires sui generis protection, she's got a VERY weak > argument. This oscillation of protection is true FOR EVERY NEW ART AREA > AS A MATTER OF COURSE. I'm in general agreement with this argument. I may differ slightly in degree, but I am not convinced that a new area of law must be carved out for software vis-a-vis copyright. If anything, the traditional area of copyright seems to be following software into the electronic age. The current legislation is largely aimed at this (mis-aimed, in my book, but...). > I believe that the idea of sui generis protection is by itself very > dangerous, even if the law is better than the status quo in theory. > Without getting to the merits, what of the chaos and uncertainty that will > ensue? Yes, this is a highly conservative position, but after studying > Copyright Law since the 70's and seeing it evolve, I wouldn't want to give > up the certainty we now have as to how to govern our conduct for anything. Don't rock the boat? There are some merits, but I'd be loathe to promote this as my primary objection to manifestly bad law. Say, civil rights, women's rights reforms? I could see phase-in periods for new law to allow for orderly transition, but to say "we can't do that, it would be better to be there but it might hurt to get there" is weak. Say a 5-10 year period of transition. > Paula wants to make a change, but she doesn't really say why change is > necessary. She observes the fit between patents, copyrights and software > isn't perfect. True, but when is the "fit' perfect? The question is > whether it is doing its job. I don't see the schrapnel falling that the > critics claimed would happen -- none of it. I do, however, see a lot of > good arising from software IP. It would take a compelling argument, not a > whine about aesthetic objections or a laundry list of relatively > insignificant difference, to lead me to think new legislation is called > for or justified. I still see some rough edges, particularly in the object code as copyrighted debate, infringing RAM copies (effects much more than software, see above on traditional areas of copyright). SW licensing and EULAs have their warts. Patent takes too long to get, lasts too long when got, isn't checked sufficiently when registerd, and is hard to challenge and unregister. Industrial damage as a result? Not sure. > In article <35CBF4CC.18894597@ix.netcom.com>, kmself@ix.netcom.com wrote: > > > Roger Schlafly wrote: > > > > > > Karsten M. Self wrote in message <35CB4B3E.36C1CF57@ix.netcom.com>... > > > >SW doesn't fit copyright because copyright is designed to control > > > >publication while disseminating knowledge. SW uses copyright to control > > > >appropriation while disseminating product. Fair Use exceptions have > > > >emerged as the vehicle under which reverse engineering can occur, but > > > >it's still a bit messy, in my book. > > > > > > And do movies, music records, and artwork fit copyright? > > > This distinction seems bizarre to me. > > > > None of these are utilitarian works, Samuelson's main argument. > > Define "utilitarian." Does it extend to factual accounts and > non-fiction? Are my computer games "utilitarian?" Here is where Paula's > arguments begin to fall on their own weight. [Be prepared for a > discussion of architectural works.] How about: utilitarian: (3a) of, relating to, or aiming at utility utility: (1) fitness for some purpose or worth to some end. (2) Something useful or designed for use. [Webster's Ninth Collegiate Dictionary] A "useful article" is an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information. An article that is normally a part of a useful article is considered a "useful article". "Pictorial, graphic, and sculptural works" include two-dimensional and three-dimensional works of fine, graphic, and applied art, photographs, prints and art reproductions, maps, globes, charts, diagrams, models, and technical drawings, including architectural plans. Such works shall include works of artistic craftsmanship insofar as their form but not their mechanical or utilitarian ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ aspects are concerned; the design of a useful article, as defined in this section, shall be considered a pictorial, graphic, or sculptural work only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article. ^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^ A "computer program" is a set of statements or instructions to be used directly or indirectly in a computer in order to bring about a certain result. [17 U.S.C. 101] The three paragraphs from 17 U.S.C. 101 have long bothered me. They don't seem to fit together. Note that the pictoral, graphic, and sculptural works definition excludes computer programs, independently defined. It's the spirit, not the letter, I'm emphasizing. I don't understand your question WRT factual or fictional accounts. If you are talking about works about factual or fictional accounts, I would say that there may be some utility in the information, but that utility is not protected by copyright -- merely the expression of the fictional/factual account. Characters, situations, and themes are copyrightable, under the courts. I would deem your games utilitarian insofar as they are comprised of utilitarian interactions and modifications of technological artifacts -- computer software and hardware. I'll counter: what is your prespective of the sale of a game? Is the customer buying the program which makes the game possible, or are they buying the instantiation created when the program is run? Which of these -- code or game -- would you rather have protected on the market? > > All > > carry, or reveal immediately when played, viewed, watched, whatever, > > their content. Publishers of records, producers of films or sculptors > > of artwork don't seek to keep the buyer of a copy of the work from > > examining it in complete detail. Software -- object code -- by > > contrast, requires detailed examination and mechanical processing to > > divulge its meaning. > > That's, at most, a distinction without a difference. Many works are > perceived not by the expression directly, but by the "execution" of the > expression. Records and tape recordings, written music, written dance > recordations, scripts, screenplays. Noone purchasing and using software > CARES about the particular expressions of the mechanical object > code/binary format for recording the record/use of notation to relate > music or dance or theatrical and stage dirctions -- what they enjoy is the > execution of those things. ....the hackers do. I'm not buying the instantiation of the program, I'm buying the object code which makes the instantiation possible. See my response to Roger for more discussion. Audio and visual recordings are different in that the information provided is not interpreted "to bring about a certain result" -- it's simply played back directly, with a very direct, one-to-one mapping between recorded data and revealed information. Note again that this distinction is lost with more complex forms of recordings such as multimedia and interactive books. Again, I see non-SW copyright issues converging on the concerns of SW. > This is nonresponsive to the poster's point, which is that IP, > particularly copyright, provides very effective protection indeed for the > copyright owner's expression. Otherwise, Microsoft would not be as > financially well-endowed as many nations. It was you yourself who has pointed out to me several times that copyright provides *no* protection of the ideas embodied in software. I answered this in response to Roger. Suggest that IP is at least sufficiently strong if the industry is thriving as much as it is. > Andy Greenberg -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 12:41pm up 56 days, 10:10, 2 users, load average: 1.26, 1.28, 1.18
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Sun, 09 Aug 1998 14:00:50 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0908981400500001@tstpa1-61.gate.net> References: <35cc6c9f.978749@news.ucla.edu> <werdna-0808980856490001@tstpa1-18.gate.net> Newsgroups: misc.int-property,misc.legal.computing Lines: 33 In article <35cc6c9f.978749@news.ucla.edu>, bstock@ucla.edu (Bob Stock) wrote: > This is true, but it doesn't go far enough. Samuelson's point is that > that you can have execution of programs with different "expression," > but which both produce identical behavior. You can't do that with > musical or textual symbols. That's nonsense, of course. Different programs (modulo comments that do not compile to code or mechanical substitutions of names) typically have different executions. Sometimes they make a difference, and sometimes they don't. But it is the same with music, drama and dance. What is the difference between (Brief Pause) and (Beat) in a script? Between piano and pianissimo? Between writing a repeat using repeat symbols, or a D.S. with Coda, and rewriting a phrase out entirely? Between different phrasing notations, between different barrings? About 3,000,000 different digital representations of the same musical performance? About 3,000,000 different mixes of the same musical performance? Different expressions can yield, at an appropriate level of abstractions, dramatically similar works, and different expressions, at an appropriate level of abstraction can yield "clearly" different works. And besides, Bob, what's your point? Why does the fact that two different "expressions" yield an identical "behavior" (presumably defined at the appropriate level of abstraction) have to do with the propriety or scope of I.P. protection? -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 5 Aug 1998 14:24:06 -0500 From: peltz@jaka.ece.uiuc.edu (Steve Peltz) Message-ID: <6qabgm$1cp$1@jaka.ece.uiuc.edu> References: <35C89C0D.479E1D47@ix.netcom.com> <6q9nrc$jj2@bourbon.cs.umd.edu> <6q8nc2$8n8$1@camel25.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 56 In article <35C89C0D.479E1D47@ix.netcom.com>, Karsten M. Self <kmself@ix.netcom.com> wrote: >Name three SW patents, including patent number, which you feel are >unreasonable. (XOR and Pantone have been discussed). The Wang patent. The backing-store patent (I "invented" it myself shortly after finding out there WERE graphical windowing systems (that didn't use it, due to the high price of memory at the time) - so I feel I can honestly assert that it was obvious). Using a character ROM on a glass TTY. Two I've been involved in were a DEC patent on "ring buffers" and a patent on a bingo game. The DEC patent is 4,449,182, issued May 15, 1984, INTERFACE BETWEEN A PAIR OF PROCESSORS SUCH AS HOST AND PERIPHERAL-CONTROLLING PROCESSORS IN DATA PROCESSING SYSTEMS. I'll have to go find the bingo patent number (I just re-found the copy of the deposition; I'm pretty sure the patent number is in there). As far as I know, both patents are still in force, although successful defenses have been raised against them (i.e. cases were settled out of court). Someone called me a few months ago about the bingo patent, so I'm pretty sure it is still going strong. Both had relevant prior art presented; in the bingo case, one ruling by the judge was that since the patented game used distributed processing (the user terminal did the logic to determine whether a BINGO had been scored), and the prior art version was implemented on a single mainframe (even though, internally, the game was implemented as separate processes communicating through a "communications means", in essentially the exact same way as the patent described, regardless of whether that was through shared memory buffers or a network), and didn't automatically call a BINGO (intentionally - the whole point was to make the PLAYER notice it and press a key; at which point the program would verify if it was or not). The DEC patent was pretty much blown out of the water. We were using the same method, in a publically used system, well before the patent. To top it off, we still had on-line discussions of the changes that were made and why, which matched pretty closely the advantages claimed in the patent. Yet the patent is still in force as far as I know (and I think DEC still claims they've never lost a patent case). Regardless of prior art, I would claim that BOTH patents were "obvious" (given the current state of the art at the time), almost trivial in fact, and not worthy of patent protection AND were being abused (the DEC case was using it as a protection against being able to build compatible peripherals, as the OS used that method for communicating with external devices). Actually, the bingo patent was OK on the face of it - it is only when it is interpreted as a software patent that it became a problem. It had a pretty clever method of using a physical game board with the layout of that board encoded into edge contacts to let the computer determine when a BINGO could be called. If it stuck with that aspect only, I wouldn't have a problem with it.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 06 Aug 1998 22:17:02 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0608982217020001@tstpa1-110.gate.net> References: <6qci3q$mmh$1@nnrp1.dejanews.com> <35C9576B.7CC3675A@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 27 In article <6qci3q$mmh$1@nnrp1.dejanews.com>, johnny_squire@hotmail.com wrote: > 1. A patent monopoly is given in exchange for a valuable disclosure to the > public. > 2. For a disclosure to be valuable, the public must learn from it. > 3. The public learns nothing from software patent disclosures (i.e. name three > programmers who ever learned anything by reading it in a patent). > Therefore a patent monopoly is inappropriate in exchange for software patent > disclosures. Big leap there. If the disclosure is directed to an enabling disclosure of a new, useful and unobvious subject matter, then proposition 3 is false. Accordingly, the syllogism fails for valid patents. Of course, propositions 1 and 2 are overblown generalizations, neither true nor false. A disclosure needn't be valuable to justify a patent, merely containing an enabling disclosure of a new, useful and unobvious. Proposition 2 requires some definitions before it can be analyzed. Even in view of those problems, however, of course the leap to the conclusion defies logic. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 13:46:01 GMT From: johnny_squire@hotmail.com Message-ID: <6qmtip$151$1@nnrp1.dejanews.com> References: <werdna-0608982217020001@tstpa1-110.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 20 In article <werdna-0608982217020001@tstpa1-110.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > If the disclosure is directed to an enabling disclosure of a new, useful > and unobvious subject matter, then proposition 3 is false. As ever, you've merely regurgitated the current practice of the profession. It's a question of fact, not law, whether a given legally enabling disclosure has actually taught anything to anyone. > A disclosure needn't be valuable to justify a patent, > merely containing an enabling disclosure of a new, useful and unobvious. That's the current state of the practice. Is it right, good or constitutionally justified? No. JS -----== Posted via Deja News, The Leader in Internet Discussion ==----- http://www.dejanews.com/rg_mkgrp.xp Create Your Own Free Member Forum
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 18:34:37 +0000 From: "Karsten M. Self" <kmself@ix.netcom.com> Message-ID: <35CF3D3D.B21C8DF9@ix.netcom.com> References: <6qmtip$151$1@nnrp1.dejanews.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 johnny_squire@hotmail.com wrote: > > In article <werdna-0608982217020001@tstpa1-110.gate.net>, > werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > > > If the disclosure is directed to an enabling disclosure of a new, useful > > and unobvious subject matter, then proposition 3 is false. > > As ever, you've merely regurgitated the current practice of the profession. > It's a question of fact, not law, whether a given legally enabling > disclosure has actually taught anything to anyone. If the provision of IP protection by patent allows the inventor to publicize or describe his invention, then patent is promoting the advancement of knowledge. We don't need to show that patent claims are being read by other inventors (and they are), but that a patent claim provides security for the inventor to discuss his own invention without fear of losing rights to the idea. -- Karsten M. Self (kmself@ix.netcom.com) What part of "gestalt" don't you understand? Welchen Teil von "gestalt" verstehen Sie nicht? web: http://www.netcom.com/~kmself SAS/Linux: http://www.netcom.com/~kmself/SAS/SAS4Linux.html 11:31am up 58 days, 9:00, 2 users, load average: 1.10, 1.20, 1.20
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 22:13:49 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1008982213490001@tstpa1-41.gate.net> References: <35CF3D3D.B21C8DF9@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 23 johnny_squire@hotmail.com wrote: > > In article <werdna-0608982217020001@tstpa1-110.gate.net>, > werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > > > If the disclosure is directed to an enabling disclosure of a new, useful > > and unobvious subject matter, then proposition 3 is false. > > As ever, you've merely regurgitated the current practice of the profession. > It's a question of fact, not law, whether a given legally enabling > disclosure has actually taught anything to anyone. I dissent. It's a question of fact whether a patent discloses new, useful and unobvious subject matter. If that is true, then it is apparent it must teach SOMETHING, since the subject matter is new, useful and unobvious as a matter of fact. If that is false, then the patent is invalid. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Wed, 12 Aug 1998 07:00:29 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D19FFD.25F5FA51@ieee.org> References: <6qpiro$4jh$1@nnrp1.dejanews.com> <werdna-1008982213490001@tstpa1-41.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 48 johnny_squire@hotmail.com wrote: > The difference here, and the thing I'm trying to point out, is that a patent > may well be CAPABLE of teaching and _in fact_ teach nothing. Patent validity > (capability) is a legal question. Whether any one human has learned from a > given patent is a factual question. The latter SHOULD be the question that > determines whether the patent system serves it's constitutional mandate. But the proper question is not whether a given patent teaches, or really whether a given technology teaches, but rather whether the system as a whole teaches. > I'm certain that whatever actual teaching, if any, software patents have done > is an insufficient contribution to society to justify the monopoly granted. First, you suggest that looking at the patent system on a technology by technology basis makes sense. It really doesn't. The patent law is written very broadly. It does not say that it covers everthing except these five technologies just because the tradeoff between disclosure and protection didn't work out positively for these technologies. Rather, pretty much all technologies are thrown in together when determining whether or not the beneifits of the patent system outweigh the costs. Secondly, we are coming out of an era where really the only way that software technology was taught was in printed publications. There was not any great wealth of patent information on software until very recently. But this was because for a long time it was difficult to get software patents. Plus, even during that time, many of the software patents were disguised as something else. This of course has changed. An experienced software patent practioner can now overcome the nonstatutory problems of patenting software on a fairly consistent basis. As Greg A. in his Patent News statistice regularly points out, the number of software patents is rapidly increasing. We can expect that more and more of the prior art will be found, and taught in the patent data base. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Thu, 13 Aug 1998 08:18:48 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D303D8.4CDEEE48@ieee.org> References: <6qsjs7$f6$1@nnrp1.dejanews.com> <35D19FFD.25F5FA51@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 36 johnny_squire@hotmail.com wrote: > > First, you suggest that looking at the patent system on a > > technology by technology basis makes sense. It really doesn't. > > I guess I should be flattered, but it's Prof. Samuelson's suggestion, not > mine. FWIW, I think firmware embodiements of mathematical algorithms should > be nonstatutory too, so it isn't a technology by technology thing - its a 35 > USC 101 thing. Well, at least you are consistent. However, both are for the most part now patentable. Allapat basically said that a programmed general purpose computer becomes a special purpose computer, which is a machine under section 101. Note BTW that software per se continues to not be patentable (except possibly in a method claim). Rather, software in connection with some hardware is what is patentable. That connection may be loading it in RAM (a machine), or written to a floppy/CD (article of manufacture). As for Prof. Sanuelson's position. First, as far as I am aware, it doesn't have any real legal basis. Secondly, she is not, and never has been either a programmer (her husband is, or rather was) or a patent attorney. And more importantly, I will suggest here that most of her observations were made at an earlier time, when there was much less software patent prior art in existence, and what there was was often hidden as electronics. -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 01:05:58 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6r0r00$o98$1@camel25.mindspring.com> References: <6qvhun$qjf$1@nnrp1.dejanews.com> <35D303D8.4CDEEE48@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 johnny_squire@hotmail.com wrote in message <6qvhun$qjf$1@nnrp1.dejanews.com>... >Somewhere a bunch of posts back, this thread started as a discussion of >(Samuelson's) sui generis protection v. patents for software. "Real legal >basis" (beyond the constitution) isn't at issue. I know the current state of >the law, and appreciate the patient reiterations by the patent professionals, >but aren't you guys (Hayden, Greenberg, Aquilla, others?) willing to discuss >whether something better that what we have is possible? Sure, something better is possible. I'd be all in favor of a sui generis software protection if I thought there was any chance of something reasonable being passed and implemented. But the suggestions from law professors (like Samuelson) is so silly, impractical, and out of touch with reality that it is laughable. And the stuff out of Congress is worse. The House just passed HR 2281 which is a sui generis protection for databases, and for copy protection. The law is stupid, ineffective towards its stated goals, downright harmful in its side effects, unreasonably favorable to the special interests pushing the bill, and generally bad from beginning to end. Every change that Congress proposes for copyrights and patents is bad. I see no hope that Congress could produce a sui generis software protection system which is better than what we have.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 07:18:31 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980718310001@tstpa1-20.gate.net> References: <6qvhun$qjf$1@nnrp1.dejanews.com> <35D303D8.4CDEEE48@ieee.org> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 62 In article <6qvhun$qjf$1@nnrp1.dejanews.com>, johnny_squire@hotmail.com wrote: > In article <35D303D8.4CDEEE48@ieee.org>, > Bruce Hayden <bhayden@ieee.org> wrote: > > > Well, at least you are consistent. However, both are for the most > > part now patentable. > > > > [true, but irrelevant statement of current law snipped] > > > > As for Prof. Sanuelson's position. First, as far as I am aware, > > it doesn't have any real legal basis. > > Somewhere a bunch of posts back, this thread started as a discussion of > (Samuelson's) sui generis protection v. patents for software. "Real legal > basis" (beyond the constitution) isn't at issue. I think he was talking [in sections snipped] about her other legal arguments about the patent system as it presently stands. In particular, Ms. Samuelson still writes from about a decade-old perspective concerning Section 101. The law has evolved considerably (actually gone back to where it was before Benson), but Professor Samuelson seems to be focused still on legal arguments not really meaningful in patent practice. Agrees she advocates sui generis patent protection; agree that some of the discussion has been directed to that. Some of it hasn't. For example, hasn't Mr. Squire been making arguments in this very thread that the present regime isn't constitutional? > I know the current state of > the law, and appreciate the patient reiterations by the patent professionals, > but aren't you guys (Hayden, Greenberg, Aquilla, others?) willing to discuss > whether something better that what we have is possible? That's interesting. I know few practicing lawyers in this area who would make that claim, not from ignorance, but from the fact that the "state of the law" does not reduce to bright-line rules easily scryed from cases. And yes, we *ALL* consider whether something better is possible. However, this must begin with a full and fair analysis of what is wrong with the status quo; and a clear-minded recognition at what will likely happen if Congress ever decides to revisit the Patent Act in this regard. Current experiences in patent reform and the database legislation are, well, scary reminders of what sausage legislation can be. Additionally, changes to legislation for inventions rlated to software raise a host of serious consequenes and problems, not the lest of which is the decade of uncertainty as the new laws are construed by the courts. This is, I agree, a conservative position: don't fix it unless its broken AND you know the fix will be better, and the mechanics will cluefully apply the fix correctly. However, I think we can all agree that there is a great deal at stake. In this view, it seems to me responsible to assure that everyone is fully apprised about the current state of the law. In my eperience, most lay (and some lawyer) posters on the internet seem to be less than fully briefed in this arena. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 06:58:09 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-1408980658090001@tstpa1-20.gate.net> References: <6quom3$lph$1@nnrp1.dejanews.com> <werdna-1208982256220001@tstpa2-80.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 52 In article <6quom3$lph$1@nnrp1.dejanews.com>, johnny_squire@hotmail.com wrote: > In article <werdna-1208982256220001@tstpa2-80.gate.net>, > werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > > > Doubtful distinction, IMHO. My Webster's Third New International (which I > > take it is an adequate representative of the English language) defines to > > "teach" to mean "to cause to know how to do something." > > > > Something that satisfies the stautory prerequisites for patentability > > clearly accomplishes this. To the extent it does not, it clearly does not > > satisfy the statutory prerequisites: > > Wrong. The statutory prerequisite is that the patent disclosure CONTAIN > disclosure sufficient to teach. Then we agree it teaches. > The constitutional prerequisite is that the > patent SHARE information in exchange for a monopoly. The law wrongly assumes > that people skilled in the art will read and learn from the patents. You won't find these words in the constitution. And if Johnny's sole point is that a book doesn't teach unless it is read, I really cannot quibble. My reply, however, is, "so, what?" Why wouldn't it teach anyone who reads? > > If a professor stands in front of an _empty_ room and lectures - there has > been no teaching, even if the lecture was brilliant and capable of > enlightening the masses. Teaching, by your definition above, requires that > someone learn. Software patents are like the lecture to an empty room - no > one hears what they have to say. Seriously, Johnny, what is your point? That because YOU don't read patents, the patent system is unconstitutional? Nonsense. It is certainly not true that NOBODY reads patents. Many people do. In fact, how many patents were cited in this very thread and the parallel threads as we are writing, with URL's directly to the IBM patent server? Anti-patent people are reading patents all the time (hoping to find another "bad software patent" to hype), and frequently publishing its text and text of its claims. I rest my case. To the extent Johnny Squire's now agrees that the patents do teach so long as they are read by persons, I believe they serve their public purpose. Even if it were true that the public chose not to read them -- it wouldn't be much of an argument that they were deficient. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 14 Aug 1998 20:02:20 GMT From: johnny_squire@hotmail.com Message-ID: <6r254b$hfq$1@nnrp1.dejanews.com> References: <werdna-1408980658090001@tstpa1-20.gate.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 In article <werdna-1408980658090001@tstpa1-20.gate.net>, werdna@nonspam-gate.net (Andrew C. Greenberg) wrote: > Seriously, Johnny, what is your point? That because YOU don't read > patents, the patent system is unconstitutional? Nonsense. I do read patents, but I'm not a programmer anymore. Software patents today are problematic (not unconstitutional) because NOBODY OF ORDINARY SKILL IN THE ART reads them. Can you have three non-lawyer programmers step forward and claim to have learned something from a patent? I can't. I NEVER saw one when I made my living as a programmer. I certainly wasn't taught to use them as a resource in my Computer Science courses, nor in any of the developer training I attended. I believe that my fairlure to learn anything from patent disclosures as a programmer is very typical (the rule?) and would shut up if someone showed me otherwise. > It is certainly not true that NOBODY reads patents. Many people do. In > fact, how many patents were cited in this very thread and the parallel > threads as we are writing, with URL's directly to the IBM patent server? The patents quoted in this thread have been discussed only because non-lawyer programmers find them obvious or ridiculous, not because they have something to teach. JS -----== Posted via Deja News, The Leader in Internet Discussion ==----- http://www.dejanews.com/rg_mkgrp.xp Create Your Own Free Member Forum
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 17 Aug 1998 11:48:36 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6r9tp2$ius$1@camel25.mindspring.com> References: <6r9q59$3il$1@nnrp1.dejanews.com> <35D65EE8.67F4EFC2@ieee.org> <6r254b$hfq$1@nnrp1.dejanews.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 29 johnny_squire@hotmail.com wrote in message <6r9q59$3il$1@nnrp1.dejanews.com>... >The difference is that until recently, S/W was nonstatutory. That's where my >argument stops. > >If the little guys (or the anti-S/W-patent guys of whatever size) in the S/W >industry had their act together, they could get Congress to do as you >suggest. Heck, if doctors can make medical technique patents unenforcible >against them, maybe can programmers do something similar. After all the time >they've spent on Y2K, programmer immigration and Microsoft IE, Congress must >have a new appreciation for the industry... ;) That might be refreshing for Congress to at least look at the question. The situation we have now has been dictated not by Congress, not by the patent office, not by the supreme court, but by an inferior court in Washington which is fond of ignoring precedent and which is composed of judges who know nothing of software. Most of them don't even have a patent law background. The supreme court decision in Benson was not reversed in Diehr, and is supposed to still be good law. Yet the federal circuit ignores it.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 17 Aug 1998 20:32:28 -0700 From: Bruce Hayden <bhayden@ieee.org> Message-ID: <35D8F5CC.936FAB76@ieee.org> References: <6r9tp2$ius$1@camel25.mindspring.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,comp.os.linux.misc Lines: 48 Roger Schlafly wrote: > That might be refreshing for Congress to at least look at the question. > The situation we have now has been dictated not by Congress, not > by the patent office, not by the supreme court, but by an inferior court > in Washington which is fond of ignoring precedent and which is > composed of judges who know nothing of software. Most of them > don't even have a patent law background. And you think that J. Douglas did in Benson? The Federal Circuit at least has some patent expertise. Congress and the Supreme Court have essentially none. Indeed, if you read the cases coming out of the Federal Circuit, it is clear that they know quite a bit more about patents than you do. As for understanding software, that is (IMHO) precisely why the trend has been towards patenting, and not aways from it. Do you really contend that J. Douglas in Benson understood the first thing about software? At least today, most judges, and invariably all of their secretaries and clerks know at least enough about software to run their own computers. It is doubtful that most of the Court in Benson had ever even seen a computer in person. > The supreme court decision in Benson was not reversed in Diehr, > and is supposed to still be good law. Yet the federal circuit ignores it. No they don't. However, they have narrowed it quite a bit. This is what I call wishful thinking law. You wish that software wasn't patentable, and thus it really isn't, despite the courts consistently deciding to the contrary. Reality Check. The Federal Circuit has significantly narrowed Benson, taking the lead of the Supreme Court in Diamond v. Diehr. That is the law. Software is patentable if properly claimed. Sorry. Arguing to the contrary, as you apparently are doing, is counter- productive. (Arguing that software isn't legally patentable is quite different from arguing that software shouldn't be patentable). -- -------------------------------------------------------------------- The preceding was not a legal opinion, and is not my employer's. Original portions Copyright 1998 Bruce E. Hayden,all rights reserved My work may be copied in whole or part, with proper attribution, as long as the copying is not for commercial gain. -------------------------------------------------------------------- Bruce E. Hayden bhayden@acm.org Phoenix, Arizona bhayden@copatlaw.com ***Currently use the following: bhayden@uswest.net
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 7 Aug 1998 11:01:24 +0500 From: cmikk@tig.oss.uswest.net (Chris Mikkelson) Message-ID: <35cb24d4.0@news2.uswest.net> References: <werdna-0608982229040001@tstpa1-110.gate.net> <35c8bd25.0@news2.uswest.net> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 32 In article <werdna-0608982229040001@tstpa1-110.gate.net>, Andrew C. Greenberg <werdna@nonspam-gate.net> wrote: [Regarding two "impossible" compression patents] >I would be curious what language in the specifications of either patent >that Mr. Mikkelson feels is directed to an impossible invention. I do not >claim such language isn't present there, only that upon a cursory scan, I >did not find it. Jean-loup Gailly has done a more thorough examination than either of us. http://w3.teaser.fr/~jlgailly/05533051.html (it has a link to an analysis of the second patent, also) Mr. Gailly is the author of gzip, the GNU compression program. He discovered these two patents while verifying that gzip did not use any patented compression algorithms. While re-discovering J-l Gailly's page (I hadn't read it in a while), I found a link to the comp.compression FAQ. According to its section on compression patents, run-length encoding is patented! I would certainly have suspected that to fail the "not obvious" requirement. Supposedly these patents were granted in '86 and '89 [warning: this post is not y2k-compliant], and I have a hard time believing that there is no prior art. I was under the impression that the run-length encoding idea was "as old as the hills", so to speak. -- Chris Mikkelson | Economics is a zero-sum game. Anyone who says cmikk@uswest.net | otherwise is selling something.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 7 Aug 1998 17:05:27 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qg4ok$f5g$1@camel29.mindspring.com> References: <35cb726a.0@news2.uswest.net> <6qfqi6$l1t$1@jaka.ece.uiuc.edu> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 35 Chris Mikkelson wrote in message <35cb726a.0@news2.uswest.net>... >I think that the central problem with Software patents really *is* >the relative speed at which the computer industry moves. If you >have a software idea, generally you can have a saleable product >within a couple of months. Once you have the "prototype" (in the >more traditional sense, i.e. a first working example of the final >product), you have the product, and it costs next to nothing to duplicate >it. Thus, the profits roll in much faster. Dream on. Most significant new software products take 2+ years to develop, 6+ months to test, and millions of dollars to bring to market. >Compare this to a more traditional, physical widget of some kind. After >the invention, you must also manufacture a factory, to produce the items. >Then, you must pay for the materials which the item is made out of. The >manufacturing costs (the incremental cost-per-item) is much higher relative >to the price people will pay, so it may actually take 17 years for you >to make a decent profit. There are drugs and other products which have relatively low manufacturing costs. >PS: On a related note, just imagine that Dan Bricklin had patented the >spreadsheet. It was, I believe, a mostly original idea at the time. At >least original enough for the patent office to accept ;-). Actually, he could not have patented it because Pardo had already patented it. The patent's validity was upheld in court, but when the inventor sued Lotus, it was knocked out on a trivial technicality.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Fri, 07 Aug 1998 22:51:31 -0400 From: werdna@nonspam-gate.net (Andrew C. Greenberg) Message-ID: <werdna-0708982251310001@tstpa1-18.gate.net> References: <35cb726a.0@news2.uswest.net> <6qfqi6$l1t$1@jaka.ece.uiuc.edu> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 57 In article <35cb726a.0@news2.uswest.net>, cmikk@tig.oss.uswest.net (Chris Mikkelson) wrote: > In article <6qfqi6$l1t$1@jaka.ece.uiuc.edu>, > Steve Peltz <peltz@jaka.ece.uiuc.edu> wrote: > >I think the reasoning is that, although the algorithm itself isn't > >patentable, the application of the algorithm is (i.e. what is patented > >is the idea of using the topological sort as a method of determining > >the order for recalculating cells in a spreadsheet). > > > >Not that I think that's how it should work... > > I really have a difficult time seeing algorithms in anything other > than a mathematical way. Not a problem -- just don't sweat it. Mathematical or not, the APPLICATION of an algorithm to a particular patent, expressed as an apparatus, article of manufacture or method will be patentable. _See_ State Street Bank. > I think that the central problem with Software patents really *is* > the relative speed at which the computer industry moves. If you > have a software idea, generally you can have a saleable product > within a couple of months. Decades old notion. It takes way more than that much time to print T-shirts at today's vaporware rates. No serious software is developed in this timeframe. Prototypes are not meaningful "products" in the sense described. > PS: On a related note, just imagine that Dan Bricklin had patented the > spreadsheet. It was, I believe, a mostly original idea at the time. At > least original enough for the patent office to accept ;-). Actually, there were spreadsheet applications (both patent and software applications) well before Bricklin. However, it is amusing you should say this, as I just wrote a newsletter describing the State Street Bank case, beginning with a discussion of Bricklin & Frankston's consultation with their attorney just a few years before Diamond v. Diehr. > Remember when VisiCalc came out? I was alive, but don't remember. Remember > what the state-of-the-art computer was back then? The most advanced software? > > 17 years is just plain too long. Yes, I do remember when Visicalc came out. I remember the absolute thrill of being the author of the very first software product ever to beat it on the SoftTalk monthly sales list. But your conclusion is nonsense -- the notion of a spreadsheet in software is as viable today as it was then, in many ways moreso. The invention is as commercially important now as it was then. -- just another view, Andy Greenberg (remove "nonspam-" to get my real mailing address)
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 10 Aug 1998 15:05:47 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y6af5cwtbo.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 140 jsm@mindspring.cob writes: > Craig Burley (burley@tweedledumb.cygnus.com) wrote: > > "Roger Schlafly" <nospam.schlafly@cruzio.com> writes: > > > Most significant new software products take 2+ years to develop, > > > 6+ months to test, and millions of dollars to bring to market. > > > The 1998-08-10 Forbes article on free software seemed to suggest > > otherwise, especially about that last part. > > I want to agree with you, Craig, really I do, but I keep getting > stuck on the real value of all that volunteer programming talent > at (a conservative) $50/hr. In the original context -- software patents vis-a-vis the pace of the software industry -- do you think that value is pertinent? Put another way: if I plan to spend $2M to create a new, proprietary Fortran compiler, perhaps it can be argued that I need software patents to preserve my investment until I get significant ROI from sales of individual copies. I can allocate a suitable portion of that $2M up front to code reviews for patentable matter, hiring of attorneys, and so on. No problem. OTOH, if you claim that $2M is a reasonable approximation to what it took to create g77, a widely used free Fortran compiler -- or will take to create it, depending on how you define it as "finished" -- then I'd be happy to agree with you as far as *that* goes. However, you'd also have to show that it is about as easy to allocate a portion of that $2M for *real* up-front spending on lawyers, patent- application fees, and other legal mumbo-jumbo, which is doggone hard to do when that $2M is *not* real money -- just value imputed by you (and many others, of course) *after* the project is complete, or substantially so. If you can't do that, perhaps that suggests something important vis-a-vis whether the patent system is a help, or a hindrance, to software development in *general*, given that at least one major (and growing) methodology used is *hindered* by the patent system. I believe it *is* a hindrance, and an especially nasty one if it can't keep up with relatively minor, short-term changes (compared to other long-patentable fields) like the free-software movement upon which more and more businesses are coming to depend. So my next question would be: exactly what purpose would software patents serve that a free-software product like g77 would *need*? So far, my answer is: the only possible use is defense against large corporations already using software patents to prevent certain kinds of free software from competing with their proprietary products. That is, if software patents don't exist, or are sufficiently restricted so that general-purpose computing is rarely entangled within it, then there's no need for them in free-software products like g77. The original quote to which I responded seemed to be saying "no way the software industry goes too fast for the patent system, all the major packages take forever and tons of money to develop", and the Forbes article seems to say "not really" to at least some of those assumptions. If you want to *value* the efforts taken to *rapidly* develop free software at some dollar value, fine, but you might as well just say "well, instead of taking 10 programmers 2 years to create, it took 120 programmers 2 months to create, which amounts to the same amount of *overall* time". Would you then claim that the patent system is still sufficient to keep up with *that* pace, on the theory that man-hours are man-hours however they're implemented in "wall-clock time"? How far would you be willing to go down that road -- claim that a 10-year-average approval process is "okay" because, after all, it'd take one programmer *20* years to develop the average major application, so having the approval process take only "half the time" it takes for a typical major project to be brought to market, if done, *theoretically*, by only one programmer, does not constitute a hindrance regardless of how many programmers are actually thrown at the job and thus how little time it actually takes? In summary: the present patent system is entirely built around the concept of *up-front* development and related legal work, including the concomitant spending and, thus, allocations of cash. The burgeoning free-software movement is entirely built around the concept of spontaneous, often "bushy", generally unplanned, growth requiring little cash and thus little or no initial allocations. Therefore, software patents are unlikely to be anything but a substantial hindrance to the free-software development paradigm, as it's clear they're of no fundamental help. (Free software is inherently published, as source code, so any time taken to find patentable inventions in it is most efficiently used by simply publishing such things forthwith, rather than submitting them for a long, "secret" review by the PTO. Note: I believe some non-US PTO's don't keep them secret, but have lost track; these might pose somewhat lower hindrances to free-software development for that reason.) Of course, we (in the free-software community) have known that software patents pose a danger for *many* years. The one thing that might change this equation somewhat is if a bunch of really bright lawyers "convert" to a similar paradigm, a free-IP one, helping their "brothers-in-arms" in the free-software community by rapidly applying for relevant patents for use by that community and, at the same time, challenging software patents that are held by proprietors. That'd mitigate, somewhat, the up-front cash-spending needs, for lawyers anyway -- though us programmers don't have to spend thousands of dollars anytime we want to publish some new code the way lawyers do to file or challenge a patent, again illustrating the impediments the patent system places in the way of the coming Information Age. (As far as whether a lawyer might get the some "buzz" by successfully challenging a patent, taking on all costs himself and getting no rewards except pats on the back, as some of us programmers get when we find and fix a big bad bug in a popular application under similar risk/reward circumstances -- I can't speak to that, as I don't know enough lawyers.) For the most part, this is all an interesting theoretical exercise. At some point, there might occur some pretty serious examples of how much of an impediment software patents are to the entire industry. E.g. Microsoft might decide to attack Linux on patent-violation bases, or some such thing. This is one possible scenario that might bring about substantial industry-wide antagonism towards software- patent proprietors, just as the possibility of widespread Y2K outages worldwide might conceivably bring about substantial antagonism towards anyone who distributes software without source code for public review. Another summary: since the patent system is all about ensuring that inventions are published, it can offer *no* advantages to the free-software community, since that community *necessarily* publishes all of its inventions, in the form of source code available for public review. -- "Practice random senselessness and act kind of beautiful." James Craig Burley, Software Craftsperson burley@gnu.org
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: Mon, 10 Aug 1998 22:47:20 -0700 From: "Roger Schlafly" <nospam.schlafly@cruzio.com> Message-ID: <6qolo6$2a$1@camel25.mindspring.com> References: <werdna-1008982237130001@tstpa1-41.gate.net> <y6af5cwtbo.fsf@tweedledumb.cygnus.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 22 Andrew C. Greenberg wrote in message ... >> E.g. Microsoft might decide to attack Linux on patent-violation >> bases, or some such thing. > >They might, they just might. So far, however, Microsoft has been the >world's leading VICTIM of software patents, being on the losing end of the >STAC lawsuit to the tune of $100M. There's no other meaningful litigation >in this arena. In other words, software patents have benefitted Davids >far more than Goliaths so far as support can be found in the public >record. This analysis is incorrect. First, Stac settled for an amount much less than $100M. Second, Microsoft lobbies in favor of strong software patent, and it isn't known for acting against its own self interest. Third, patent license negotiations are almost never on the public record. Fourth, software patents raise the barrier to entry in the software market, and that fact works to Microsoft's favor.
Subject: Re: Pamela Samuelson panelist at Open Source town meeting 8/21/98 San Jose, CA Date: 11 Aug 1998 15:15:21 -0400 From: Craig Burley <burley@tweedledumb.cygnus.com> Message-ID: <y6hfzjl48l.fsf@tweedledumb.cygnus.com> References: <6qfn8t$sem@bourbon.cs.umd.edu> <35C74BAC.547245AC@ix.netcom.com> Newsgroups: misc.int-property,misc.legal.computing,comp.os.linux.misc,gnu.misc.discuss Lines: 529 werdna@nonspam-gate.net (Andrew C. Greenberg) writes: > > However, you'd also have to show that it is about as easy to allocate > > a portion of that $2M for *real* up-front spending on lawyers, patent- > > application fees, and other legal mumbo-jumbo, which is doggone > > hard to do when that $2M is *not* real money -- just value imputed > > by you (and many others, of course) *after* the project is complete, > > or substantially so. > > Nothing like $2M is ever necessary to acquire patent protection for an > invention. And if you are relying upon grant money from a University, > there is always that resource. If you are relying upon volunteer work for > the benefit of the public, you might seek a lawyer to work pro bono > publico (lawyerese for "for the benefit of the public") to help you > protect it. If you can't find someone to do it pro bono, that might > suggest something about the public benefit of the work. I'm sorry, but could you miss the point *more* than you do? The ORIGINAL QUOTE was about LARGE software projects, and was in response to the claim that the patent system might be a hindrance to software development. AFAIK, *each patent* costs $K to apply for, with no promise it'll get approved, so for even medium-scale, $200K development projects, the cost of patent applications needed to even *try* to provide a defense against litigation by other patent-holders can consist of well beyond 5% of the total cost, assuming that cost is *cash* (which is not the case for free software -- the cost there is, instead, value imputed to the labors of volunteers). You're just making the excuse that the free-software community can *theoretically* afford to fully engage the software-patent system so that you don't have to defend that system against quite- legitimate charges that it serves largely as a hindrance, not a help, to software development *in general*, and this will get *worse*, not better, as free-software development gains prominence, since such development *practically* cannot afford to "slow down" just to cope with software patents. Further, individuals like myself *cannot afford* to do our volunteer development under an ever-increasing threat of litigation over software patents. No amount of theoretical hand-waving will change this. Only the elimination of software patents can assure that it won't be a problem. The likely solution will be some middle ground, e.g. something like what Karsten talks about. The fact is, I very nearly stopped writing g77 because of the threat of *personal* exposure vis-a-vis software patents, and decided to plow ahead only because it seemed unlikely that a compiler for FORTRAN 77 would violate any important patents *or* that the Fortran community would tolerate a lawsuit against a volunteer writing code supportive of that community. I could *not* have gotten up-front funding to apply for software patents of my own, and even if I had, I couldn't have afforded to spend all the extra time to try and divine patentable material from the largish, but fairly mundane, code I was writing at the time -- code containing inventions that would be published *anyway*, and thus did not need the patent system to be "teased out" of my brain. More cutting-edge software products are starting to be written by free-software developers, and the only way software patents won't be purely a hindrance to these is if the computer industry as a whole refuses to sue, or threaten to sue, developers and distributors of free software for patent violation. However, this would require a change in behavior, since the industry has *already* so threatened, just as the Linux name was "tied up" in ludicrous litigation because some bozo decided he could trademark the name, even though on the *face* of it, he had no case. Linux "won", as it should have, of course, but it took time *and* money to bring about the obviously correct result. In the case of software patents, instead of missiles (as in trademarks), which are clearly visible as they approach and forthrightly dealt with, we have land mines, planted years earlier in the hopes of catching someone. The perceived value they're likely to have, especially among the "if-it's-legal-it- must-be-ethical" crowd that, so often, includes substantial numbers of lawyers, will not necessarily exclude free-software developers among their targets. As these mines begin detonating, people will take note and free-software development will slow down, with no benefit accruing to the industry as a whole, since all free-software development is published *anyway*. On the plus side, I thought this would have happened by now, but am unaware of any substantial increase in such cases. However, Netscape probably wasn't worried about anyone giving away free knock-offs of its products, until it started actually happening. > > If you can't do that, perhaps that suggests something important > > vis-a-vis whether the patent system is a help, or a hindrance, to > > software development in *general*, given that at least one major > > (and growing) methodology used is *hindered* by the patent system. > > I don't think I agree. Property rights in general make it difficult for > poor authors to write as much as they would like, instead needing to work > to feed and house themselves and their families; they make it difficult to > perform theatrical productsions, it being difficult to find resources such > as a theatre and advertising; they make it difficult to make movies, yet > propery generally works well for the benefit of society. Some things cost > money to do, others do not. If what you are saying is that it is > difficult to write free software for free without having the benefit of > legal counsel (or a computer, or electricity), I agree. Does that mean > the patent system is broken, or that "the software industry" is hindered > thereby? I don't think so, any more than the complaint that you need to > have a computer to write software makes the personal property system a > hindrance. Still others can get jobs doing software for the same reason > the freebies are having problems. Again, you're missing the point. Nobody in this sub-thread was talking about the validity of IP (or property rights) in general. The assertion was that software patents have *too high* a cost. The response was, essentially, "not compared to large software projects, which take many programmers 2+ years and $2M", at which I chimed in about the pertinence of