Software Patents vs. Free Software 87
Bruce Perens writes: "Did you think you knew what I am doing about software patents from the news coverage? You're probably wrong. Get the real scoop here. There's been enough distortion that I took the time to put down my own opinions, and an explanation of the summit meeting I'm calling on Free Software and The Law. Thanks! - Bruce" You might need to read our previous story about Perens' patent activities for background.
I don't think special consideration is fair (Score:3)
As big a fan of Open Source and Free Software as I am, I don't think that this is the way to go about promoting it or protecting it. Sure we have some kind of implied backing from companies like IBM and HP at the moment, but as Bruce says it's not anything official, and it shouldn't become official.
By making the links between open source and these companies explicit, we are basically putting ourselves into legal obligation with these companies, sacrificing freedom for security. And we all know what our Founding Fathers thought of that idea!
No, the strength of free software is that it is free. By tying it into treaties and contracts with companies we lose the strength which makes it far superior to any closed-source equivalent. We all know corporations aren't to be trusted, and despite their current "nice guy" acts, both IBM and HP have in the past abused their positions within the industry for their own gains.
Free software should remain free. And corporate sympathisers such as Bruce Perens should realise that by playing to the whims of their masters, they risk everything we've gained in the last decade.
New category of patent (Score:4)
reinventing the patent system (Score:4)
Ironic to see that one country controls the fundamentals of an invention that wasn't created in that country. Why should the United States have exclusive rights to determine what should and what should not be patented. Example would be the Swede who invented the mouse and never got his patent, nor credit for the invention. Why should he be cheated by a system which cannot govern themselves in a morally ethical fashion, that extends to everyone, free from biases such as the parties bank roll.
Maybe a consortium of international scientists, and engineers should be chosen via methods of voting to serve on an international commitee to promote fair uses of patents in non biased fashions, as opposed to having one central form of governance which does a crappy job allowing monopolizations.
Take notice "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" now in theory I take this in context to mean that no software in the world should be patented since it took the works of other patented (pre-existing works other than the Author's own) items to create. How does the agency determine that "X Product" from X Foo Company is the genuine inventor of the product without using something that was hidden under the dusty shelves at the patent office.
Is it me seeing this in a different perspective entirely or is this more or less the same arguments coming out of Peren's write up.
What should be done is the loser of the case should have to foot both the lawsuit fees, and legal fees to bring the trial to light. Court cases sure are expensive, and its unfair to both thos plaintiff and defendant to dish out monies for it. Remember a defendant is guilty until proven innocent, and in most cases it would be Davy being sued by Goliath, so since the burden of proof would lay on Goliath's shoulders, they should be the ones to foot the bill for the legal case until the matter is resolved. Afterwards should Davy lose, well then the legal fees would be paid along with whatever else.
Just my two cents on it all.
Re:New category of patent (Score:1)
I dunno. I was thinking of a year. It would actually be quite hilarious to see what would happen if a short-term patent was introduced for software. I can just imagine the frenzy of development and patent applications by large coporations! And they would have to patent because we can duplicate any software innovation in the time it takes to say, "copy *.*" (whoa - my roots in DOS have just reared their ugly heads)
Pinky: "What are we going to do tomorrow night Brain?"
Re:I don't think special consideration is fair (Score:2)
No legal obligations exist between open source and the companys who support it.
What a sad day it would be when all it requires to obtain legal binding is to offical support.
Outside of actually signning away freedoms nothing is lost by supporting those who support you..
And you can ask Bruce personally this October! (Score:3)
Bruce is going to be giving the following seminars:
I'm sure amidst all those talks, you could find him meandering about on the ship and corner him for some one-on-one.
No, I don't work for geekcruises.com, I'm just excited to go... :-)
-B
Sounds like Bruce is thinking straight (Score:3)
From the letter, it sounds like Bruce is arguing this very well. "Hey IBM and HP, you've noticed that OSS is the goose that lays the golden eggs, and you're in the process of stealing a march on your competitors by being the first to make use of this. Well, this nasty software patent thing, as well as having very few net benefits for you people, may soon be used by your competitors to kill that goose. Therefore, you've got a direct and immediate interest in helping to dismantle this system, or protecting the goose from it."
He's showing them why it's in their interests to help us. Thanks a lot Bruce, and keep up the good work!
My thoughts.. (Score:4)
In time the company will donate back to the open source world, be it with advertising, hardware, or code, once there business model is based around open source software it is in there best interest to help it along. IBM is going to want to advertise the software they use. And they are going to want to hire programmers to help the project along.
Re:I don't think special consideration is fair (Score:4)
Now listen to this very carefully... the open-source community has no money. In the next couple of decades things are going to get very very hot in the courts and specific individuals in our community are going to need protection. If a company stole my software, patented it and then threatened me for patent infringment, would YOU give me the money I need to protect myself? In fact would any of you reading this give me the money?
So far our strength lies in numbers (and average IQ) but there will come a time when we need the clout that comes from a community joined. The best way to accomplish this at this moment in time is to tentatively ally with select companies. We've got nothing too lose. How is a company going to take anything from us? We give it away freely anyway.
Pinky: "What are we going to do tomorrow night Brain?"
Re:I don't think special consideration is fair (Score:2)
If they play fair, I would imagine some sort of 'seal of approval' is in order since they'd deserve it and hopefully such recognition will encourage others to follow that example. It will make it much harder for Microsoft to hoodwink the less informed if HP, IBM et al suddenly announce their own plans to co-opt Free Software and Open Source and actually have a set of independent (from themselves) standards to adhere to which are.
There is no "legal obligation" from us to these companies, there is a "moral obligation" the other way around and if you for one minute believe that any of the initialed few (ESR, RMS, BP) will, between them, settle for anything less than what we expect of them, then you need to lay off the computer for a few hours and get some sleep.
Nothing agreed will undermine the freedom you have to do what you like with Free Software (within its current terms), except that the summit may result in a promise from these software patent holders to leave your well alone.
A good thing and well timed. How better can IBM and HP make Microsoft look even more out of date (the death toll in the Technology sector) And since their prime concern is money (via the winding path of good publicity and marketing), this is something I expect they will drool on their collective advisory reports about.
It is all about providing some level of 'approval' to those who play by our rules which they are then free to use as they see fit. Its good and hopefully will mean The People have more of a say in how corporates are run, especially since its our money they are aiming for.
Compare and contrast to Apple or Microsoft's positions on the same subject.
Re:reinventing the patent system (Score:3)
Because it's their nation. Patents issued by the USPTO aren't world patents, so the Swede you mention later could have patented his mouse in the rest of the world, where similar and different patent rules apply.
You're basically making the same mistake as many Americans are accused of: Assuming that the USA means the world.
Who is "We" ? (Score:5)
People like the above poster and Bruce Perens make me wonder exactly where the notion of an Open Source Community and the concept of "we" comes up in this discussion. Bruce Perens does not represent the Linux kernel hackers, the Apache Foundation, the *BSD coders nor even the people that hack Slashcode. So on exactly whose behalf is he signing treaties with and who will enforce his end of the bargain?
I've previously told Bruce on kuro5hin [kuro5hin.org] that companies have no incentive to give up their IP and in fact will probably lose out on the deal (OpenSSH vs. SSH is a good example) and I'm yet to see a good counter argument for that. Also the fact that he has nothing to back up his threats to them with is also not encouraging. Here's an excerpt my reply to his post on K5 [kuro5hin.org] about that.
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Re:New category of patent (Score:3)
RMS in diplomacy shocker! (Score:3)
--
Re:Who is "We" ? (Score:1)
> and in fact will probably lose out on the deal
This not only depends on the company, it depends on the *market*!
Who do you think HP and IBM's have identified as their market with their Linux/OSS drive? Who do you think will be running the corporate IT backbone by the time they expect it to be the most prevelent software? Who do you think CAN demand pretty much anything from them? That is the 'WE' and it is us. We can demand anything we like becuase we have the money in OUR pockets. If they won't play, they will look very bad and loose this market. Someone else will come to serve it and they will win it.
I think you'll be very surprised at just how powerful such a simple thing as customers in a connected market can be. We can talk to each other now, not just the "Your call is important to us" voice of 'customer services'.
Divide and conquer has long gone in this sector.
Try http://www.cluetrain.com
Re:I don't think special consideration is fair (Score:1)
Overseas Patents!!!!!!!!! (Score:3)
Re:My thoughts.. (Score:2)
No one's saying they have to pay for anything, and no one is forcing them to do anything. This is merely a discussion and an attempt to persuade.
Did you think ESR was going to pop out of the bathroom with a pair of six-shooters and demand their patents? Where do all you normally intelligent people get this ridiculous idea that anyone is being forced to do anything?
Bruce's arguments are weak (Score:4)
The five arguments Bruce puts forward are weak. If he wants to make progress, he will need something stronger. Here are some counter arguments; those who wish to help Bruce may want to find arguments that defeat them. (Note that denial or ranting is not going to give him anything he can take into the meeting.)
constitutionally unjustified: this may be something that you could use in the US legal or political systems, but why should it influence multinational companies? It is not their business to interpret or enforce the US constitution, they just operate within the law as interpreted in the courts.
isn't the computer, not its software, the thing that should have been patented? Why is it wrong to be able to protect a new idea implemented as a pattern of digits, but right to be able to protect a new idea implemented as a pattern of metal or plastic? It is the new idea that is being patented, the preferred embodiment being in software is not the real issue. This is where all the generalised argument against an ill-defined concept of "software patent" will be easiest to take apart.
The 20-year term it may be true that the particular embodiment will be obsolete, but the idea could well still be very valuable. If the idea is not valuable then the patent does not matter because nobody is using the idea, and the holder is paying the patent fees for no benefit. If people still want to use the idea in a new implementation, then it is still valuable and clearly not obsolete.
The monopoly ... anti-trust laws this is much like the constitution issue, this is a matter for the political and legal system, why should the companies be doing anything themselves?
U.S.A. Tax if other countries change their patent laws, then US companies will have to start paying holders of patents in those other countries if they want to use the ideas there. Making the patent law the same everywhere could just as easily reduce the dominance of US-based patent holders.
Remember that "hundreds of anonymous people don't like it" is not much of an argument to take into a meeting with companies that are making a lot of money out of their patent portfolios. Don't just say you think patents are evil, think of some better arguments than the ones Bruce started with.
IBM makes lots from patents (Score:2)
IBM got $1.5 billion in profits from licensing patents last year.
So getting IBM to give up patents could be a hard sell.
I wonder if it is possible to "GPL" a patent.
Maybe allow a patent licensed for free as long as the software it is used in meets the free and/or open software definition.
Re:reinventing the patent system (Score:1)
However there are certain (official or unofficial?) agreements between governments though, so that patents filed in (some) contries will be honoured elsewhere. This suprises me as I'd have thought that the patent lawyers would just love it if more work was produced by requiring patents to be filed in _every_ country.
Me? Lawyer bashing? No, 'course not gov :)
Phew! (Score:3)
Re:My thoughts.. (Score:2)
No, but now that you mention it....
Just remember to let Bruce know before hand, so that there aren't any, er, 'accidents'.
Re:Who is "We" ? (Score:2)
Re:reinventing the patent system (Score:1)
"Hardware" versus "software" patents... (Score:2)
Re:IBM makes lots from patents (Score:1)
Hmm... Dunno, but it seems to be possible to patent GPL:ed code... Or something.
Check this license [rtlinux.com] out.
multinational companies just operate within th law (Score:1)
That and change laws where they can to favour themselves, and buy off state officials where they can to overlook transgressions.
> Making the patent law the same everywhere could just as easily reduce the dominance of US-
Making the rest of the world adopt US laws and atittudes, as usually happens (cf legislation on Illegal drugs or software patents), does nothing to reduce US dominance.
Just Software Patents? (Score:1)
Large companies will always do whats in their best intrests regardless of what they say their reasons are. Profits are everything, the advance of the software development is nothing. Big corporations will always go as far as the law allows (sometimes further if they think they can get away with it) to maximise profits. The only way we can change the way they act is to change the system.
And since they control the system I cant see things changing...
Stallman & Perens The Free Software Movement (Score:2)
Re:reinventing the patent system (Score:1)
I think thats very fair. But then again, if people just grab my source and compile it themselves, whats the incentive for me to market the program? The second people see the source, it might as well be public domain. I can't say I have an easy answer to that. Like it or not, commercial software does have its place, just as free software does. But then again, as it has been mentioned, getting a patent is costly, much less defending one (even when you are in the right).
And all of this, really, is why the US patent system is so screwed up... there are a lot of tough calls, and its all but impossible to really be fair. I sure wouldn't want the task of trying to create a patent reform bill!
"HP aggressively incorporated GNU/Linux"?!?! (Score:1)
If they expect significant revenue then maybe they should get aggressive enough to actually keep up with their marketing claims. I work for an University that owns over hundred HP NetServers. To maximize services while reducing cost, we have installed Linux on a dozen of these NetServers to provide services such as DNS, SMTP relays, Web servers, UseNet, etc. So, we have HP NetServer sales team out to provide us more information on where HP is headed in the future. And during the meeting we bring up Linux. They talk all about how HP is putting it's hardware including server grade hardware and storage area networks through a "certification" process. Supposibly, for a NetServer which has been certified to run Linux, the drivers to take advantage of all marketed features is available. However, they can not name a single model from the HP NetServer line where the HP TopTools or any other Linux health monitoring package works on! The NetServer health monitoring capablity was heavily marketed to us, it just that it can't be taken advantage of when running Linux. And supposibly the HP sales team was going to have a HP tech email me back with how to get TopTools running on the NetServer line. But they haven't.
A couple years ago, I did get a HP tech to write me back about NetServer health monitoring. He stated that NetServers are "IMPI compliant." This is like saying that something is "SMTP compliant." From a hardware driver/support stand-point it is close to useless information. SMTP commonly rides on top of TCP/IP which in turn commonly rides on top of Ethernet. So, if you don't know the Ethernet chipset used on a system, your not going to be doing much SMTP. Likewise, IMPI commonly rides on top of I2C which commonly rides on top of a SMbus. So, if you don't know the SMbus chipset then your not going to be doing much SMTP. Hence, we aren't. No hardware health monitoring at all, just aggressive marketing of hardware features going to waste.
But there is hope! The "aggressive" incorporation of GNU/Linux has lead HP to release TopTools for two Kayak workstation models of XM600 and XU800. If we buy HP workstation hardware instead of server grade hardware, then we can use the agressively marketed hardware health monitoring. In fact, the Linux standard support for health monitoring called "lm_sensors" also works because one of the lm_sensors authors signed a NDA (Non-Discloser Agreement) for supporting the Kayak HP prioritary MaxiLife sensor chipset. But the TopTools when run on HP NetServer line report that "this is not a HP computer or is the wrong model" and lm_sensors do not work either. We are considering other manufactor's in the future that don't use prioritary sensors which require NDAs to use.
We also talked with HP about a HP OpenView solution. They explain how they keep CPU utilization down on the servers that are monitored by looking directly into the kernel structures. This, of course, makes their close source software very kernel version specific. They still have not gotten back to me as to when HP OpenView agents will be usable on Red hat GNU/Linux v7.1 (which use kernel version 2.4 instead of v2.2).
Now, if HP is so agreesive that server grade features such as hardware health monitoring only work on their *workstation* line and HP does not provide responces to Linux hardware/kernel support related questions, why should they expect to get significant revenue? Wouldn't they get more significant revenue if they fully supported Linux on the NetServer line instead of encouraging Linux customers to downgrade to workstation hardware for full support? Wouldn't they get more significant revenue if Linux customers where more confortable with HP by being able to ask questions of the lm_sensors MaxiLife driver author instead of putting him under the cloud of NDA? Wouldn't they get more significant revenue if they actually provided the email responces they promised to Linux customers instead of driving the customers to their compettors to get responces? I guess what I mean to ask is, shouldn't HP reserve their expectation of significant revenue before long for a time when they stop treating Linux customers like shit?
Patent Facts FYI (Score:2)
One important claim made in the article is that software patents aren't generally enforceable. While that might be true in theory, I wonder how it actually works out in practice? Consider these 1999 statitics for the U.S. Patent system as a whole:
Average monetary award by a jury in a patent infringement case: $8.6 million
Average monetary award by a judge in a patent infringement case: $9.8 million
Percentage of lawsuits which are settled before trial: 61.5%
Average reported* out-of-court settlement amount: $39.6 million
* Many smaller settlements are not reported.
Patent owner's success at trial: 76.5%
Percentage of patent infringement judgments which are appealed: 51%
Success rate of jury cases after appeal: 61.7%
Success rate of judge-alone cases after appeal: 74.1%
(Source: Patent Enforcement and Royalties Ltd [pearlltd.com] )
The interesting numbers to look at are the success rates of IP owners in successfully getting their patents upheld in court. Now this doesn't break out software patents by themselves, but the overall statistics are pretty much in favor of the IP owner. Food for thought.
Jared
LPI [lpi.org]
Still worried about deploying Open Source Software? Consider this: The Ark was built by amateurs; the Titanic by professionals. Which would you have rather been on?
Re:IBM makes lots from patents (Score:1)
Sure, you could just file the patent and then license it for free, or else (probably ?) just enforce cases where they are using the license for reasons you aren't happy with.
Re:reinventing the patent system (Score:2)
No effect of the constitution (Score:1)
Isn't that like saying "If the constitution doesn't say that linux is better than windows, then linux is unconstitutional?"
free software and patents (Score:3)
Check this license [rtlinux.com] out.
Victor Yodaiken chose to license a patent for use in software released under version 2 of the GNU GPL. The net effect is less freedom than mutual defense [mit.edu] or simply publishing the "invention" to serve as prior art.
Leadership is... (Score:3)
I respect the contributions of people like Stallman and Perens, but their egos tend to keep me at a distance from their "cause." I like the idea of free software; I release code under the GPL -- but I do not consider Perens and Stallman my "leaders", nor do have I granted them to right to speak for me.
Perens and company preach about noble goals embodied in free software -- yet they only seem to want information to be "free" when they have dictated the terms of that freedom. This closed meeting violates the spirit of free software. I smell hypocrisy in their words...
How much real code have Perens and Stallman contributed to the free world? I look at freshmeat and other repositories, and I see many, many names, from many countries -- yet Perens and Stallman get to decide who gets to speak for all of us, and they couch their cause in terms of a nation that does not encompass us all. Much as I love my country and its Constitution, I am disturbed by the insular attitude of Perens statement.
--
Scott Robert Ladd
Master of Complexity
Destroyer of Order and Chaos
Re:IBM makes lots from patents (Score:2)
I've heard that Bucky Fuller used to get patents on stuff, then explicitly place the patented ideas in the public domain. Seemed cool to me.
Re:New category of patent (Score:1)
Re:And you can ask Bruce personally this October! (Score:2)
Bruce
Where's Bruce? (Score:2)
Thanks
Bruce
A High School research teacher would give him an F (Score:1)
Best Interests (Score:1)
(1) An open source developer probably doesn't have very deep pockets, so there's nothing worth suing.
(2) Other companies might use that open source for their own projects, and when that happened, they'd be potential targets.
Hmm... I wonder if there's anything in the code Apple subsumed for OSX that's been patented? Or Sony with the Palm emulation software?
The biggest whinner since Pee-Wee Herman (Score:1)
Bruce says: "But the best argument for this essay is that software patents block Free Software development."
Except the patent system is already in place and protected by the constitution, so we can immediatly reject this argument.
Bruce claims that if x, y, or z are true then software patents should not be allowed, but he never proves x, y, or z.
Bruce seems to think that patents exclusivly protect large companies. Most really new inventions have happened apart from large companies. And the companies that have the most patents are those that have made innovation their business (bell labs, anyone) and they use the proceeds from those patents to do things like pay the salaries of the guys working there inventing more stuff.
Many new companies appear in established industries and are succesful simpply because they do thing differently. These small companies prosper in a forest of giants only because of patents.
And to the argument I have seen many times that "corporations" have many patents and Free Software has few. Since we all *know* that free software is where all the innovation is happening all you Free Software developers must niot be filling for patents. Why doesn't Bruce do something useful like helping Open Source developers get patents and enforce them instead of encouraging them not to.
Re:Who is "We" ? (Score:1)
I used to think the objectivists were quaint, until I found out Alan Greenspan is one. I wonder if he did Ayn?
Re:No effect of the constitution (Score:1)
Just like having a patent allows one to withhold the use of the patent. This has been explicitly upheld by the courts, just as they have upheld most businesses right to go out of business. That is the essence of power and control. Ever drink a Coke? Ever notice the Patent Pending on there? Think that is an unconstitutional abuse of the patent system? Just because there are patents means there shouldn't be industrial secrets, eh? Are people forgetting the part about any rights not explicitly given to congress are reserved to the states or the people?
Send me $100 each and I'll send you secrets to the 150MPG carburetor, the recipes of Coke and Mrs. Fields cookies, and how to make money, FAST!
sheesh.
Re:Overseas Patents!!!!!!!!! (Score:2)
/Brian
Patents prevent the abuse of open source (Score:3)
Let me explain why this is a concern. Suppose Company X makes Product A. Company Y competes with company X by making Product A and also makes Product B, which provides the bulk of its income and finances the development of its competitive Product A. Company X can sabotage Company Y by fostering the development of an open source equivalent of Product B so as to cut off the revenue Company Y needs to compete with it (and, perhaps, to survive). Its "air supply" -- to use the word of Microsoft executive Jim Allchin -- has been cut off.
This isn't an abstract example. In the early days of the Windows environment, Microsoft destroyed Quarterdeck, which made DESQview, by giving away a free knock-off of Quarterdeck's QEMM memory management software (which was used to support its GUI and multitasking development). The result: Quarterdeck, without a "cash cow" equivalent to Microsoft's MS-DOS, could not compete. DESQview -- the best multitasking environment available for PCs at the time -- and DESQview/X -- a brilliant GUI based on X Windows -- died because there was no money for their future development.
While Microsoft's free equivalent didn't happen to be open source, it very easily could have been. (In fact, had Microsoft not been rich enough to bankroll its QEMM equivalent itself, it might have been the only practical way to go.) In any event, it always takes much less effort and money to develop a knock-off than the original, because Quarterdeck blazed the trail by developing the technology and feature set, solving all of the knotty technical problems, and dealing with the tradeoffs that are always inherent in new products.
Richard Stallman and others have specifically touted open source as a way of attacking companies they do not like (which, in the case of RMS, includes any company that publishes commercial software -- even those which, unlike Microsoft, act ethically).
To prevent larger companies from copying their work and wiping them out -- and to prevent open source from being used in a predatory and unfair manner against them -- companies that develop new technology need to patent it. This is precisely what patents are intended to do, and they're especially urgent in an age where open source can be abused to prevent people who honestly advance the state of the art from being rewarded for their labors.
Richard Stallman once told me, personally, that one of his motivations for opposing software patents is that they would make it more difficult for the FSF to "wipe out" (his words) commercial software. Stallman's statement underscores the danger.... And the need for software patents. We might argue about the optimal length of these patents (there are many merits to the argument that 20 years is too long), and that some of them should not have been issued due to obviousness or prior art, but few of us with a sense of justice and fairness would say that open source should be allowed to be used as a weapon in a malicious agenda.
If you've heard Bruce speak, or read his writing, you know that he shares some of RMS's animosity toward commercial software companies and frequently rattles his saber, "demanding" that they forfeit their hard work. Could this be the reason he opposes software patents? Just food for thought.
--Brett Glass
What does free really mean? (Score:1)
But, free means free. If you develop for free, and then start asking for something back from someone who has made money from it, did you really mean free in the first place? That's not free. That's conditional. If you don't like others profiting from your work, don't distribute it freely then. You have the right to provide some sort of licensing mechanism that might say, for example: "Free until you profit from it. Then, you owe me money." Now that phrase was admittedly not very legalese, but you get the point.
I believe that the free software movement exists as a way to counteract heavy money-making machines, and avoid some sort of serious social disbalancing that may come from that. It's nature balancing itself, and that's just great. But if you are not ready to give your work 100% free, then be clear about it.
Re:Patents prevent the abuse of open source (Score:1)
In order to enforce a software patent, the government must stop me from expressing my mathematical ideas in the ways that I want to. It is no business of the government what machines I use to express my ideas, and then how or why I use those machines in certain ways to express my ideas.
I wouldn't care about "algorithm" patents if they really did apply to building new machines to solve specific problems. Taking an existing machine and flipping the switches on the machine doesn't seem like building a new machine to me.
People seem to make a big distinction between "code" and "speech" as if they are somehow different. The reason they look different now is that machines don't parse language well enough to understand regular human speech. As they get better at it, more and more speech will become illegal.
Maybe some things just shouldn't be patented?
Re:Bruce's arguments are weak (Score:2)
Patents aren't supposed to expire when they cease to be valuable. Patents should still be valuable when they expire. In exchange for granting a brief monopoly now, the public get access to the useful invention later. With the rapid rate of technological advance, many patents only expire when they are worthless. So what exactly is the public gaining? That's not the spirit of the agreement.
OSS Corporation (Score:3)
While it is interesting to think about getting software patents thrown out as being unconstitutional, the reality is that there are large vested interests that want to keep them.
The more important issue is that people who contribute to open source software do not have an umbrella corporation to protect their assets in the event of a patent infringement conflict. Thus, when an individual OSS contributor gets a "cease and desist" letter for patent infringement, there is real motivation for the indiviual contributor to come to terms.
One possibility is to create a corporation in a country outside the United States that "owns" open source softare. The primary purpose such an OSS corporation is to shield the assets of individual OSS contributors. If this OSS corporation is incorporated in a country that does not support software patents, a patent infringement suit gets pretty interesting.
Re:Patents prevent the abuse of open source (Score:2)
I think of what's covered by software patents as "building a machine in Cyberspace." You're engineering a machine that works in a way that previous ones didn't, or does things that no other machine has done before. But instead of using physical parts, you're creating it in Cyberspace, using code. If the design is really novel and non-obvious, you should be rewarded just as if you'd machined metal or sawed wood to make it. And if you've made a serious contribution to technology, one of the things you should be protected against is the abuse of open source to prevent you from being rewarded for what you've done. Bruce takes an "open source uber alles" approach; he assumes that everything that's open source is automatically good. But open source is actually a powerful weapon for evil, as well. It can destroy businesses and lives if used in this way. Patents prevent that.
--Brett Glass
Re:Patents prevent the abuse of open source (Score:2)
That is a very different situation than the typical software patent where I could buy a computer, take it home, type some things into it, and violate a patent by doing that. That means the patent blocks expression. Remember, a patent is a government document that says "no one else can make or do this without your consent" for a time. If the "this" is "expressing your thoughts", then the patent is a prior restraint on free speech. So, it's a question of whether patents or the first amendment are more important.
I don't like the fact that other companies (or OSS) can come along and "Steal" an idea. However, I have to weigh this against the possible harm from patents. For example, consider the BT hyperlink patent which AFAIR is still being litigated. They _COULD_ choose to sue any one person into oblivion just for making a webpage. That scares me that a company could pick and choose a few people it wanted to destroy, just because thsoe people typed some stuff into their computers. Do you really want to tell everyone that their webpages are not protected speech and that they're patent violators? It's true that they probably won't be sued, but I tend to look at laws and rules in terms of how they could be abused, instead of how much good they might do.
I just don't see software patent protection being a great deal for the little guy. If you get into this game, you have to assume that all software patents are valid until litigated. That means you should not violate patents, and you should check all patents before you code anything, and when you make changes, to see if you will violate any of them. If so, you should get licenses beforehand. So, you would need to license the BT patent, for example, and also you would have to license the IBM portfolio. Did you do this the last time you started work on a computer program? Probably not. I didn't. If you do this, you won't be able, as an individual, to program anything since you won't be able to afford all the licenses. So, your choices are to get a patent without making a product, or make a product and ignore everyone elses' patents until you have enough to use to defend yourself. I believe that companies take the second tack which means they really don't respect the patent system anyway, since their idea is to hide from everyone until they're large enough to defend themselves. I can't agree with that.
Even better, if I assume that all software patents are valid until litigated, explain how a little guy (me) could start out and write a nontrivial program respecting all patents and making sure that I didn't use any patented technology without a license. Oh, and let's do this without making me spend a huge amount of money. I don't think it's possible.
--John
Showing open source code for software patents (Score:1)
Patenting the source code directly wouldn't necessary help, as you can write code easily a bit differently to achieve the same result. I thought one patents a "software based business process" or an "idea", not one specific code implementation of that idea. And that's exactly why those patents are damaging to the progress of software development.
How many ways can you code a one-click ordering feature ? The reason why Amazon's one-click patent is damaging, is exactly because it had not patented their own specific code, but the idea of the one-click business process in itself. May be the code they had written to accomplish their one-click feature was mediocre. May be other developers could code the same thing more elegantly, would have added or designed privacy issues related with the one-click ordering feature differently etc.
It's clear to me that the patent not only prevents innovational coding by taking the incentive away from anyone to write better code for the same idea, they also take away any financial incentive for all other coders to further invest their development time into the same or similar solutions for the patented software based business process. On top of that, they prevent competing companies to use business processes, which should be "common good", because they can be "invented" or "coded" in hundreds of ways which are "commonly known".
If a software company owns the copyrights to its own (closed) software, that should be sufficient to regain R&D costs they had to invest into their development team. If a software company wants to patent a software based business method and you would request that they have to show their source code, it would just mean that you patent a specific code implementation of that business method and not the business process itself. The next step would be that each an every code implementation would be patented and this would just then mean the patent and the copyright of that code become one and the same thing. (Right or wrong ?)
People say algorithms are inventions and that you can patent therefore an algorithm. But aren't there always a multitude of possible algorithms to solve a certain problem ? (Right ? Wrong ?)
Why then wouldn't one limit the financial rewards of a software based patent, which allows a company to regain their R&D costs, to the amount of money the company had to spend on its development team to come up with the algorithm ?
An algorithm is purely the result of a thought process. How much does the brainpower of a programmer cost ? Isn't the programmer as much worth as the financial revenues the idea of the software based business process is going to generate for the company ? In other words, if the business "idea" is not that great to begin with, the programmer's work to generate code for that idea, is also not much worth, certainly not "a million or much more".
Most software based business processes patented these days are not as much worth as a twenty year long (or even shorter one) software based patent allows a company to reap profits from.
May be one should think about tieing a software based business process patent to a proof, that said business process in itself generates a meaningful profit to the company, independent from the fees the company can collect from the patent.
In case a company couldn't prove that, it should loose its patent.
If the business process is that banal, that it can't be proven that it is essential to the general business plan of the company to generate revenues (or just for that little time period til someone else would have implemented other code to implement the same business process), then the revenues from the patent shouldn't replace the non existing profits the patented business method was unable to generate.
That certainly was not intended by the people who designed the first patent laws. Clearly it was meant to do the opposite, to regain upfront investment costs to implement an innovative idea, but not to generate profit of a bad idea, which didn't cost much to implement through code to begin with. The "idea", for example, of the "one-click ordering feature" is so banal, that it hardly can be recognized as a "breathtaking invention" for the "Progress of Science and useful Art".
Can Amazon prove hat the one-click feature generates income aside from collecting fees for its patent on it ? I doubt it. Why then is it something worth to be patented, if the software based business process even doesn't help the company's business economically ? Or in other words, does the fact that Barnes & Nobles was not allowed to use the one-click ordering feature (implemented by code their own programmers implemented) had any negative economic impact on the overall business of Barnes & Nobles ? I doubt that too. How ethical then is the whole process of patenting something which is worth nothing and collect fees for someone infringing on something worthless ?
What software based patents do, is not supporting the "Progress of Science and useful Arts", they promote the "Progress of Profit of a single company" by precisley preventing the "Progress of Science and useful Arts" in the *field of software development* to allow to take place. That is clearly not the intention of the constitution. There have to be other methods for a software companies to regain R&D costs into software development than the patenting of a simple software business process.
Now the whole thing becomes completely different if you deal with open source software.
An open source code based software company can't regain its R&D costs through its copyrights on the source code, due to the GPL and similar licences.
But there might be a chance to allow the open source code based software company to still regain R&D costs if you would design a specific open source code based business process patent.
Ironically only for open source code a business process patent makes actually a lot of sense, because it allows to promote "Progress of Science and useful Art" (because of its open sources) and at the same time would allow the open source code software company to be on a level playing field to regain R&D costs.
Strangely enough the open source business process patent (within the realm of software development) is the only one, which actually makes sense in the framework of the original intentions of the patent laws, whereas the closed source business process patent opposes the original intentions of the patent laws.
Therefore it might be very important in order for the open source code and the GPL to survive, to have a specific patent for *open sourced software based business processes*, so that there is a way for the open source based companies to regain their own R&D costs as well as the closed source code software companies did with both their copyrights for their closed source code and their
patents for their closed source software based business methods. Those latter companies have one advantage too many (the business patents), whereas open source code companies have neither.
If both kind of companies were to be put on equal level playing grounds, it would mean that you have to disallow closed source code based business method patents and request open source code based business method patents for all sorts of software copyrights that include the request to free and open sources.
The GPL *clearly promotes* "Progress in Science and useful Art" in the field of software development, but forfeits at the same time the inate financial rewards it would normally hold for anything else *but* open source software. That has to be corrected.
Strange
Re:Patents prevent the abuse of open source (Score:2)
Yes, it is true that one can use bits and bytes as a means of expression as well as for invention. But one can do either with physical matter, too! Give me a piece of wood and I might create a sculpture or design and build a novel machine. Give me a computer and I might write a moving story or invent a brilliant and useful new tool. The media are different. The processes are the same.
Invention in Cyberspace is no different from invention in the physical world, except that it is easier to avoid being bogged down by the logistics and expense of moving or shaping physical matter. The only limit is my brainpower, my gumption, and and ability to organize my work. When I code, I feel like a magician.... Steve Savitsky's wonderful poem/song The World Inside the Crystal [thestarport.org], and Kathy Mar's brilliant performance of it, express the way I feel about this.
I do agree that because invention is so much easier in Cyberspace than in the physical world, the standards of novelty should be higher.... And, because technology advances so quickly, there are also good argument that the terms of patents should be shorter. But inventors in Cyberspace need protection -- both from companies that would squash them for profit and vindictive people that would sabotage them out of malice. It really looks as if Bruce wants to allow the FSF to do the latter.
--Brett Glass
My animosity for commercial software companies??? (Score:2)
I was entertained by your reference to my animosity for commercial software companies. I am a member of the top management of HP, a commercial software (and hardware) company with 84,000 employees. HP asked me to come on board to help them be a good partner with the Free Software community, not so that I could "rattle my saber at them". Being a partner means you give some, and you take some. That's quid-pro-quo is what I'm talking about in the essay.
Regarding the use of Free Software "as a weapon", I think the word you are searching for is "competition". Software patents improperly and unfairly block competition.
Bruce
Re:New category of patent (Score:2)
Certainly the obnoxious effect of software patents would be reduced if their term were only three years as you suggest. However, I still have fundamental questions about their appropriateness that a simple term-reduction would not address.
Thanks
Bruce
Re:reinventing the patent system (Score:2)
However, the availability of source code would not help much, since you would have no right to make any use of that source code without licensing the patent.
Bruce
Re:My thoughts.. (Score:3)
Free Software is not a gift, it's a partnership. There is a quid-pro-quo between the developers and the people who profit from their work. This quid-pro-quo encourages the developers to develop more. Part of this is the contribution of new free software produced by the company back to the developers whose software the company is using. Part of it may take the form of other kinds of assistance, like network services for an FTP server, etc. IBM, HP, and other companies already do these things. And I think help with these patent issues fits in with the rest.
Thanks
Bruce
Re:Bruce's arguments are weak (Score:2)
Thanks
Bruce
Re:Who is "We" ? (Score:2)
I don't make and sign treaties, but I do help companies arrive at successful relationships with the developers. I did this with IBM when their original pass at an Open Source License wasn't quite Open Source. I criticized it, they listened, and then they provided an attorney for me to work with and we fixed the license. IBM has continued to use the IBM Public Source License version that I contributed to, to this day.
Thanks
Bruce
Re:RMS in diplomacy shocker! (Score:2)
Thanks
Bruce
Re:Leadership is... (Score:2)
I get the feeling that people like Perens have become "leaders" by their own hand and word.
Isn't that true for all leaders? You have to "stick your neck out" to influence others. But I can only lead where they will follow.
I do not consider Perens and Stallman my "leaders"
That's fine, we didn't ask you to do so. Just please keep reading my arguments when I publish them, you might agree with some and act appropriately about the causes I bring to your attention. That's really all I ask of anyone.
How much real code have Perens and Stallman contributed to the free world?
A whole lot, actually. Richard more than me. Richard did GCC, Emacs, wrote the GPL, and has elucidated much of the philosophy of free software with his writing.
I did Electric Fence, created Busybox (which is a part of just about every Embedded Linux product and is a key component of the Debian install system and the Linux Router Project), helped build Debian from 60 people to 200, created the Debian Social Contract and the Open Source Definition, helped get Linux on the Space Shuttle, and, oh, just go read my bio at perens.com . Since you asked, what have you contributed?
and they couch their cause in terms of a nation that does not encompass us all.
Not really. The argument concerns the U.S. because that is the only nation that honors software patents today. We are very grateful that other countries don't do that yet!
Bruce
Re:OSS Corporation (Score:2)
One problem is that if someone wins a suit against that sort of corporation, the software it owns would be considered an asset, and could be siezed by the court and sold to pay damages to the complaintant in the lawsuit.
Thanks
Bruce
Re:IBM makes lots from patents (Score:2)
Thanks
Bruce
Re:IBM makes lots from patents (Score:2)
Bruce
Re:Stallman & Perens The Free Software Movement (Score:2)
I can call a summit, and folks will show up. Someone had to call the meeting, it's too important to simply not do anything about the situation. I am the one who made the decision to close it, as the kernel summit was closed, and that's GPL stuff too. I used RMS' logic for justification, but I made the decision because I did not see us getting an agreement any other way.
Thanks
Bruce
Re:Just Software Patents? (Score:2)
If you study the history of large companies, you will find that while they intend to behave in their own best interest, the reality is that they often fail to do so. Many large companies are the victims of software patent rip-offs, rather than perpetrators of the rip-offs. For this reason, I have some support within those companies.
Remember that I am also part of the top management of a computer company with 84,000 employees. There is actually some support within that company for my ideas.
Thanks
Bruce
Re:"HP aggressively incorporated GNU/Linux"?!?! (Score:2)
Second I forwarded your comment to some folks in the Linux division who can help.
Thanks
Bruce
Re:"HP aggressively incorporated GNU/Linux"?!?! (Score:2)
Bruce
Re:No effect of the constitution (Score:2)
Thanks
Bruce
Re:A High School research teacher would give him a (Score:2)
I wrote
The word only does not appear in that sentence and the reason given is not meant to be exclusive.If this were a school paper or one I was writing to submit to a research journal, it would have lots of footnotes. But it's neither. It's political writing.
Thanks
Bruce
Re:What does free really mean? (Score:2)
There is a partnership in free software, in which the people who make money from the software return value to the community in the form of more free software or services such as a free FTP server for a project or a loaner IA-64 machine so that Debian can do a port. IBM and HP already do this stuff. Helping us with patents fits in there, too.
Thanks
Bruce
Re:Showing open source code for software patents (Score:2)
Maybe I should have explained that in my article.
But disclosure doesn't help us much if we can't use the principle for 20 years.
Thanks
Bruce
Promote Progress by requiring more registrations (Score:1)
For example, if someone had a patent for item A, within 10 years they'd have to patent another item B to keep A active, and within five more years a third item C to keep A active, and within five more years items D and E for A and B respectively. Failure to successfully provide another IP submission would cause a registered IP item of their choice to expire; noncommunication would default to their oldest registration.
On various Slashdot postings I've seen comments requiring more money for keeping registrations alive, but something like the above would be much easier on the FSF. And it would be more sensible for AbandonWare.
Editorial: Grammar (Score:1)
should be:
and I've yet to see a
*wakes up*
Doh! Wrong forum! I thought Kuro5hin seemed a bit lacking today...
Re:My animosity for commercial software companies? (Score:2)
Your "quid pro quo" is not a fair exchange; it is blackmail -- similar to an old fashioned "protection racket." Perhaps it would be a good idea to publish a transcript of your speech so that people can understand this.
--Brett Glass
Re:My animosity for commercial software companies? (Score:2)
Bruce
Re:RMS in diplomacy shocker! (Score:2)
--
Re:My animosity for commercial software companies? (Score:2)
--Brett
Re:My thoughts.. (Score:1)
Re:Bruce's arguments are weak (Score:1)
Kiwaiti
Re:Bruce's arguments are weak (Score:2)
Since Free Software exists despite the current patent system, why should those who believe that they benefit from patents seek to change anything? The goose grew up and started laying its golden eggs in the world where patents exist. Why should leaving that world as it is kill the goose? Perhaps changing that world by abolishing patents would be more dangerous; it would benefit the ruthless and unscrupulous operators who think nothing of stealing the work of others.
On the subject of the arguments themselves; even as examples to provide food for thought, I have not seen anything in response to my counter-arguments that I think would be likely to have much impact on the people responsible for patent strategy in IBM, HP or similar companies. Better arguments will be needed if there is to be any chance of changing anything.
Re:Showing open source code for software patents (Score:1)
With regards to the 20 year period etc. I agree fully, especially for simple software business method patents.
Thanks
Re:Bruce's arguments are weak (Score:2)
I will pick up only a couple of points here. Firstly the statement "Nope, there are several treaties in place that makes a patent issued in one county valid in all the others.". You can file with WIPO rather than USPTO, EPO, and any national offices you think relevant, but you have to file everywhere you want protection. Filing through WIPO takes a very long time and is very expensive if you choose full coverage. You should attend a meeting where IP attorneys discuss where to file with the inventors or other interested parties; you might then understand that filing for full international protection is not somthing you would do for just any application.
"This is nonsense, it has nothing to do with the fee.". Did you know that you have to pay renewal fees to keep patents valid? Did you know that depending on jurisdiction, those fees increase later in the life of the patent? Companies that manage their patent portfolios explicitly look to which patents they can allow to expire early in order to save that very large cost.
Part of the problem with this subject is that those who think patents are evil seem to have never talked to an IP attorney about how the system really works in practice, and what the laws are in various jurisdictions. Hate me for being a named inventor if you like, at least it means I have had to talk to IP attorneys, so I have some idea of how the system works.