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Freedom of Speech in Software 250

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

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  • Perhaps Pianola (computer) vs the music encoded on script it plays from (software)?
  • fantastic (Score:3, Insightful)

    by zarniwhoop (698439) on Saturday August 30, 2003 @06:12AM (#6831980)
    what a refreshingly elegant way of getting the point accros (piano vs music)! I have this very minute emailed the article to my MEP!
  • by EvilAlien (133134) on Saturday August 30, 2003 @06:13AM (#6831982) Journal
    ... do we really want to encourage a bunch of code that is a blatant rip-off of existing ideas, just re-implemented? Perhaps a balance needs to be sought in short-lived patents. That was the original concept, IIRC... except the crusty old lawmakers who came up with it didn't realize how the rate of change in technology and ideas would increase.
    • by Anonymous Coward
      Maybe not, but do we want it to be illegal?

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

    • by ralphus (577885) on Saturday August 30, 2003 @07:06AM (#6832116)
      It isn't about encouraging code to be blatant rip-off's of existing ideas. Did you RTFA [philsalin.com]? I link [philsalin.com] it [philsalin.com] again [philsalin.com] for emphasis.

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

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

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

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

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

      Most software is developed on top of other software, or other software ideas. For example, Mozilla is based upon HTML which is based upon HTTP which is based upon TCP/IP, and so on. If you patent a particular peice of softw
      • Patents should only apply when the software is applied in inventions that use the natural sciences, not theoretical ones, e.g. in embedded software for a GPS system, but not in generic software like a progress bar, one-click shopping, etc.

        Mind if I ask why? How can you possibly make such a distinction? A series of operating instructions is a series of operating instructions, whether they are ideas expressed verbally to a carpenter building a house or written ideas given to a machine for processing informa
  • Yeah but (Score:5, Insightful)

    by ovoskeuiks (665553) on Saturday August 30, 2003 @06:14AM (#6831986)
    You can copyright a song.. but can you copyright the ideas behind how you made that song... I mean it's your idea etc but the basics of music aren't copyrightable. So why should we give people the right to own the ideas behind making software.
  • by MickLinux (579158) on Saturday August 30, 2003 @06:20AM (#6831999) Journal
    It's what's wrong with patents in general. Quite simply: There are natural rights, and there are granted rights. Your natural rights include such things as freedom of speech, freedom of the press, freedom of travel, right to property, and so on.

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

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

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

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

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

    Unfortunately, I'm seeing this happen in the EU, so I don't expect the union to last. But if I am correct, it also means that no argument you use will work. So by all means, try your own. But if you want, present this to them as well. Maybe it'll wake someone up, but I doubt it.
    • by heironymouscoward (683461) <heironymouscoward.yahoo@com> on Saturday August 30, 2003 @08:14AM (#6832247) Journal
      Your granted rights include such things as welfare...

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

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

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

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

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

      The EU is a nice place to live and work, and the union will last for much longer than people like you expect.
      • So you are saying that because European governments tend to tax higher in order to support a richer welfare system that EU countries will also suffer more violent crime?

        I'm not sure that your premise is true. Tax is just one form of granted rights. Monopoly, or government taxes that then pay for government contracts to companies, are also granted rights. As far as I can tell, the American system has a higher rate of granted rights than Europe, so I'd rather expect it to have more violent crime, as well
        • I believe your basic premises are inaccurate in several ways. Firstly, your definitions of "granted" and "natural" rights. This is a highly subjective viewpoint: looking at cultures across time and space it's more realistic to say that the very notion of a "right" is a granted thing. "Natural rights" sound nice but simply don't exist, unless you count the right to suffer and die, which is a bit brutal.

          Secondly, more fundamentally, your assertion that the balance between "natural" and "granted" rights so
    • > There are natural rights, and there are granted rights.

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

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

      > Unfortunately, I'm seeing this happen in the EU, so I don't expect the
      • Your post is easier to answer than the one above; the one above takes a ton more new thought, so I'm going to wait on that one. But then again, I think that the one above also got moderated better for the same reason. But I'll happily answer your post immediately. Just, check back to the one above later, because I think that he/she was a bit clearer and more succinct than you.

        If you even look at the behavior of animals, you will see that they claim property and defend it as their own. Therefore, the ri
        • > If you even look at the behavior of animals, you will see that they claim property and defend it as their own.

          There is a difference, between claiming property and having the right on property.

          Among animals, there is the right of the strongest. That is hte "natural" right. The stronger one is able to eat, to bread and to live, the weaker ones die.

          > The right to smash someone's face, as you claim, is part of the right to self defense;

          No, I said the right to smash someone's face, because one doesn'
    • The problem is that every granted right that is given to one person requires the government to attempt to deprive another person of their natural rights.

      This seems to be the center of your entire argument, but it's totally unjustifiable. It makes the fundamentally flawed assumption that "natural rights" and "granted rights" are opposed in some way, but there are countless counter-examples. What natural right does your "right to a single national language" take away? Some imaginary natural right to have

      • Natural rights are such things as life, liberty, and property ownership (land and/or items). Everyone should agree on these.

        "Granted rights" are such things as copyright, patent, etc. They are "granted" by governments for the betterment of society (or at least passed off as that).

        "Artificial rights" are such things as medical care since my "right" to care makes a demand upon a hospital and/or doctor to provide that care. Welfare makes a demand of taxpayers to "give" to the poor. etc.

        Once a government sta
  • by putaro (235078) on Saturday August 30, 2003 @06:23AM (#6832007) Journal
    The real problem with software patents is that the field is too young to support them. It's as though people were able to take out patents on "the wheel" and "fire". The patent office has completely abdicated its responsibilities as well and allows too many patents that are obvious to any competent practitioner. Ideas no longer have to be reduced to practice (i.e. implemented) which allows for a vast number of frivolous patents to be filed for.

    It's unlikely that we'll be able to get rid of software patents entirely, but perhaps some changes could be made that would make the world better for us all. A peer review panel to reject obvious patents would be a good start along with some changes outlawing overly broad patents.
  • Winner takes it all (Score:3, Interesting)

    by G3ckoG33k (647276) on Saturday August 30, 2003 @06:27AM (#6832015)
    Because, in the software industry the history has shown (especially via Microsoft) the first winner takes it all, leaving that winner with disproportionate advantages versus any competing idea.

    • Except that Microsoft wasn't first at anything, except Basic for a PC. They weren't even the first choice for OS for the forthcoming IBM PC.

      Visicalc was first with the spreadsheet, Apple was first to the PC mass market. Wordstar was first at the PC wordprocessor market. Netscape was the first web browser. And on and on.

  • by Sven Tuerpe (265795) <sven@gaos. o r g> on Saturday August 30, 2003 @06:35AM (#6832035) Homepage
    Europeans -- put this letter into the hands of your MEPs!

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

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

      In many cases MEPs, like other politicians, need to look at all sides of the equation: free speech, consumer rights, economics, practicality, etc. All of these are valid concerns for politicians, though you are right that different politicians will weigh these concerns differently.

      I have written to one of the MEPs of the party I voted for, the European Liberal Democrats (Note that Liberal means something very

      • Exclusion from patentability:

        That looks like an improvement over the current wording and over the JURI amendments, but we really need it to flat out state that an application must meet all patentablility criteria based on non-software elements. To be eligible for a patent you must do something novel - there must be a novel aspect outside of the software. To be eligible for a patent you need something non-obvious - there must be a non-obvious aspect outside of the software. To be eligible for a patent you
      • Unfortunately, that amendment won't fix anything. It's always the same thing they're talking about: technical. Please read this post [slashdot.org] to see how technical is (not) defined and how gets is interpreted by the European Patent Office.
    • Having talked to several MEPs in Brussels on Thursday, I'd have to agree that polemics about freedom of speech won't change many MEP's minds.

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

      If you want to contact an MEP, find one who is a conservative in
      • Most people don't understand computers and don't see the possibilities of what they can do.

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

        I recommend talking about things that people can lose. Like how Ebay lost a big patent suit, and had the "inventor" wanted to, he might bave been able to shut down Ebay. Talk about MS IE and plugins and explain how all of the
        • Actually, just being that specific is unlikely to work, since MEPs can then just shrug their shoulders and say: we will cover that particular example in the categorisation process during the readings in parliament.

          The MEPs talk in terms of abstractions... the directive is a set of abstractions... the only way to have it changed for the better is to explain why the abstractions are wrong, then using specific examples like ebay, one-click, progress bars, etc. to backup your case.
  • by NearlyHeadless (110901) on Saturday August 30, 2003 @06:36AM (#6832038)
    Here's something I posted on another site a couple of days ago:


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


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


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


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


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


    (Personal Communication)


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

    • I think it's important to admit that there are some good effects.

      Eating rat poison has good effects too. It prevents blood clots reducing your risk of heart attack, chuckle.

      I think you overstate the benefits. For example you mention a "repeating history" database example. In your next breath you point out that it was "re-invented". This happens constantly in software.

      The vast majority of software "inventions" get independantly invented by the second person to look at any given problem. The few truely no
      • think you overstate the benefits. For example you mention a "repeating history" database example. In your next breath you point out that it was "re-invented". This happens constantly in software.

        The vast majority of software "inventions" get independantly invented by the second person to look at any given problem.

        This is not true about repeating histories. Databases have been around since the 1960s, but repeating histories wasn't published until 1989. It has had a huge effect on database research a

  • I disagree (Score:5, Insightful)

    by Fizzlewhiff (256410) <jeffshannon@nOspAM.hotmail.com> on Saturday August 30, 2003 @06:36AM (#6832041) Homepage
    Just because code is text and literature is text doesn't make the two equivalent. Using this code is art principal, you could take a piece of hardware and take the mechanical drawings used in the design of the hardware and declare those to be art and whine about those patents too.

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

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

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

      This is copyright free of patent restraints.

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

      Always the al
    • You're right that code should not be compared to literature. It should be compared to recipes.

      Really. They're exactly the same as a piece of software: a list of commands that explains how to get something done. It's just that nowadays we're used to recipes being interpreted by humans and software being interpreted by computers. So why's that? Simple. They don't speak the same language and cannot perform the same tasks. But that's just a matter of time.

      So in effect computers are just slaves that perform task

    • Here's a thought:- code is free speech [cmu.edu] - mainly because you can transmit the idea in more than one way - but codified programs, that is, compiled applications, aren't. How about that?

      The system has been abused in novel ways, but the idea of patents in itself isn't quite stupid; as a certain ex-trade minister once said, it's one of those few things that 146 countries the world over ever agreed upon completely.

      • Here's a thought:- code is free speech - mainly because you can transmit the idea in more than one way - but codified programs, that is, compiled applications, aren't. How about that?

        You clearly aren't a programmer. The source and the application code can be identical. And even when in cases where they are compiled into a different form they are still completely equivalent.

        Please reffer to this post [slashdot.org] where I addressed this exact issue.

        idea of patents in itself isn't quite stupid

        I agree. But the idea
  • better arguments (Score:3, Insightful)

    by alizard (107678) <alizard@ecis . c om> on Saturday August 30, 2003 @06:39AM (#6832046) Homepage
    It'll be a lot more useful if you explain how software patents will be used to suppress innovation, stop the creation of new technology, and prevent the creation of new companies, jobs, and products / services / TAXABLE INCOME.

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

    THOSE are the kind of arguments politicians understand.

  • MEP's?? (Score:2, Interesting)

    by ZenBased (593709)
    Hmmz.. i do want to say something to our representatives.. but how? and who is it? pfffrrrttt..
  • You can order them by country / fraction on http://wwwdb.europarl.eu.int/ep5/owa/p_meps2.repar tition [eu.int]. If there is no e-mail addy listed, try their personal webpage, there's bound to be some sort of contact form.
  • Bring in peer review (Score:2, Interesting)

    by Anonymous Coward
    What needs to be changed:
    - The length of software patents needs to be severely reduced, perhaps to 7 years or so. The IT industry moves too quickly.
    - Patents should not be granted for overly broad or trivial ideas. I would say pretty well all software patents are trivial.
    - The patent office has no incentive to reject patents. They should be held liable, and penalised, for incorrectly granted patents.
    - Patents should be open to the public for peer review, since clearly the patent office is not capable of
  • by Serious Simon (701084) on Saturday August 30, 2003 @07:19AM (#6832142)
    The "free speech" card is useless in case of the proposed European Software Patents directive.

    Article 5 of the proposal says:

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

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

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

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

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

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

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

    Read the proposed directive for yourself and shudder:

    http://europa.eu.int/comm/internal_market/en/ind prop/com02-92en.pdf
    • I think the only useful (and powerful) objections to the directive are economic ones.

      I don't agree. I don't think the so called "economic" arguments are even arguments per se. Once you have given up your philosophical ground you have given up.

      All of your arguments would also apply to regular patents. The intention of any patent system is to encourage innovation at the expense of reduced competition. Regular patents can be abused as well. Does that alone argue for their repeal?

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

    The link is at:
    http://emvis.net/~sean/school/eng102/swpat.html [emvis.net]

    Enjoy.
  • by johvance (687783) on Saturday August 30, 2003 @07:54AM (#6832201)
    There, of course, is no reason that you shouldn't be allowed to make money of your invention. The real problem is the anti-competitive nature of the software patent. IBM holds a patent on a "list of words connected to business objects" which is basically every application including Excel, Word's "Font"-list or your browser's location bar.

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

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

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

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

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

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

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

      That was essentially a pure math development. Once you have the math the programming application of it is pretty much obvious. So you are essentially advocating patents within the feild of pure math.

      Truely non-obvious software patents are almost inevitably math developments. Once the math is known the software "invention" completely fails the non-obvious criteria.

      I hope no one thinks the math field should be patentable.

      -
  • by The Revolutionary (694752) on Saturday August 30, 2003 @07:55AM (#6832204) Homepage Journal
    The author states, "Computer Programs are Writings." He compares computer programs to written essays. I believe that both his statement and comparision are generally incorrect.

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

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

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

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

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

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

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

    A source listing's utility is perhaps directly proportional to its lack of creativity.
    • Optimality is measured (when it is computationally possible) by precise mathematical metrics. Correctness is determined not by asthetic appeal, creativity, or insight, but by nothing more than the solution being provably correct through the employment of established mathematical techniques.

      This is true only within a tiny branch of computer science, and thoroughly false for programming in general. In the real world, we deal not with the empty and valueless mathematics of pure logic, but with values which

    • A computer is a machine and a player piano is a machine. Software is a written set of instructions. Beethoven's 5th Symphony punched into paper is a written set of instructions.

      Software is no more a machine than a player piano copy of Beethoven's 5th Symphony.

      Does Beethoven's 5th Symphony get a patent when it's punched into paper?

      the computer program is similar to the collection of specific gears, sprockets, pins, and their particular arrangements which cause a machine to work in a useful and well-defin
  • by heironymouscoward (683461) <heironymouscoward.yahoo@com> on Saturday August 30, 2003 @08:02AM (#6832219) Journal
    Since software is rapidly becoming a material that can implement devices previously possible only in hardware. Consider a GSM for instance.

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

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

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

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

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

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

    Patents are instruments created by governments to allow their business buddies to monopolise interesting areas of business. Today, any argument against patents, software or not, has to be stated in terms of "benefit to the government", not philosophical arguments about pianos and music. Legislators don't give a rats ass about music.
    • I hope they do extend it into other artistic areas. Then people will see how bad software patents are. It will be a more concrete example since those other artistic expressions are more well understood by people. So, I think it's always good to compare software to art and music and TV and movies and pictures and books and poems, since in all cases you have people manipulating machines creatively, thereby causing a string of bits to be created that can later be used as a set of instructions for the original
  • We should think player piano (patentable) vs the music (copyrightable but not patentable) it plays.

    I'm not sure what this sentence means at all. Is it English? How did it get past the editors? Are the editors English?
  • a piano is an item, a piece of hardware that is patentable

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

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

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

    The output it produces is copyrightable (documents)

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

      A player piano is just another type of piano. They are both similar machines. The "music" it "plays" is really a set of coded instructions to make the machine operate in a particular way. A piano is a sound creation machine. A computer is an information processing machine. The only difference is in what they output. In both cases the machines need a set of instructions in order to operate. Even a manual operator of th
  • For those who are interested, myself and a friend took some photos whilst in Brussels. We were lobbying MEPs in the European Parliament.

    http://www.tomchance.uklinux.net/swpat-brussels.sh tml [uklinux.net]
  • Jim Tyre wrote a brief on this [cryptome.org] for the DeCSS case which espouses a similar idea to Salin's letter. I don't recall that Salin's letter being mentioned mentioned in any of the DeCSS related or the CHBreak cases. I wonder if the PTO or anyone else has paid attention to it?
  • by taliver (174409) on Saturday August 30, 2003 @08:30AM (#6832282)
    It would be _so_ much better if software was patented. Patents still expire in reasonably short amounts of time, and you could ensure that any software patent had to come with source. Then, after 14 years or so, you have gobs of open source software, as opposed to nearly a century (95 years as current US copyright goes).

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

    This is easy. Software most certainly is expressive conduct, but it is also most certainly functional as well. Used in connection with a machine for the purpose of the machine's

  • Use poetic aliterative variable names which connotate the emotion behind the variable rather than stark descriptive variable names which denotate the purpose of the variable.

    Use a pretty turn of algorithm rather than a boring direct approach.

    Write additional haiku, odes, sonets, etc. in the comments rather than describe your intentions in writing a particular step in the code.
  • This is one of the best explanations I've seen.

    Actually I've never seen a good explanation why software patents shouldn't be allowed. They usually boil to one of three arguments:

    (1) there are stupid patents out there
    (2) 17 years is too long
    (3) I don't want to search for patents when I code

    Let's go over each one of them. For (1), the fix is to not issue stupid patents. Stupid patents are not a software specific issue, although admittedly, we have more than our fair share of them due to the inexperience o
  • So much has already gone into effort to stop "Software Patents" in Europe but to no avail. Perhaps the reason is the Europe is taking the better safe than sorry approach.

    Considering the US patent office grants patents and anything from the wheel to swinging sideways on a swing, dropping their responsibility of granting only valid patents, while letting the court system (that finds MS guilty of Federal crimes but does not punish them)..... sort it out at the aditional expense of the concerned parties..

    The
  • Off Topic but semi-relevant: did you know that photo portrait studios reatain the rights to you family photos? That's right! If you take your cute-as-a-button 3 year old daughter to Nolan Frills studio for pictures, they own the photos! You just get some prints. Conceivably they could sell those photos to some magazine and make big bucks from them. Read it here [olanmills.com] - they might release the copyright for a fee.
  • The LPF has several notable papers by notables regarding software patent issues here: http://lpf.ai.mit.edu/Patents/patents.html [mit.edu]
  • 1.Applicants must show a working example of their patent that implements all the claims contained in the patent. If they dont, they dont get the patent. (this would probobly get rid of some of the shonky patents)

    2.The patent office should do better searches for prior art and if things are found that should have been found by the applicant, the applicant must pay the patent office money (to discorage the filing of "obvious" patents and so on)

    3.If you dont enforce your patent, you risk loosing it (i.e. it w
    • 1.Applicants must show a working example of their patent that implements all the claims contained in the patent. If they dont, they dont get the patent. (this would probobly get rid of some of the shonky patents)


      That has already been tried and abandoned as unworkable. There are actually museums full of working models of inventions from the days where this was art of patent law.

      2.The patent office should do better searches for prior art and if things are found that should have been found by the applican
  • Lame argument (Score:2, Interesting)

    by extremecenter (620934)
    The author complains that

    It is to say, in effect, "Don't try to solve problems and invent solutions as you see fit; you or your software agents might independently write or invent something which the patent office's licensers have placed on the Index of Banned Algorithms; in which case, at their discretion, they can force you into an expensive, traumatic legal Inquisition..."

    Engineers in other fields have had to deal with this issue for two centuries. Get over it. The same argument could be made for t

  • by pauljlucas (529435) on Saturday August 30, 2003 @11:17AM (#6832914) Homepage Journal
    Computer Programs are Writings. As such, they should be subject to copyright law (narrowly interpreted) or trade secret protection, but not patent law.
    He's exactly right, and computer programs are subject to copyright law, but that's not what we're talking about. We're talking about "software patents." However, there is no such thing as a software patent.

    It's the idea for which the software is an embodiment that is patented. If you try to copy the idea, even by writing your own software, you would be guilty of patent infringement.

    More formally, the thing that is patented is the device a computer becomes when running a given piece of software. For example, if, back in the day, the guys who wrote VisiCalc had patented the idea for doing electronic spreadsheets, what they would have patented would have been the electronic spreadsheet machine that the computer would have become by running VisiCalc. The fact that the idea used a computer and software as part of its embodiment is irrelevant.

    Putting software together in just the right way to transform a computer into a novel invention is patentable just like putting gears, wheels, iron plating, etc., together in just the right way to transform a bunch of metal into a steam engine is patentable.

    The complaint against "software patents" and the USPTO has to do with the "novelty" and "non-obvious" tests for patent worthiness and calls into question the USPTO's ability to make good desicions regarding software-embodied inventions only and does not mean that software patents as a whole are bad.

  • Flawed Argument (Score:3, Interesting)

    by the eric conspiracy (20178) on Saturday August 30, 2003 @12:07PM (#6833181)
    The problem with treating software solely under copyright law is that it does not recognize the functional, technological component inherent in software.

    Music is not a functional, algorithmic implementation of a transformative process. There is no mapping of a range to a domain inherent in a piece of music.

    Patents are awarded for Inventions (also sometimes termed Implementations), and copyrights for Expressions. If someone were to take an existing well known algorithm, say the bubble sort, and code it up in his language of choice, that work is an expression and is protectable by copyright.

    If somebody were to examine and existing piece of mathematics and realize for the first time that it has applicability in solving a sorting problem, and then code it up, he would have both an invention (use of the math in the contect of the sorting problem on a computer) and an expression (the computer code). Clearly this qualifies in some protean sense as an invention.

    Heck, the author would even be able to take the result as a working model to the patent office - on his laptop computer, satisfying the old 19th century requirement for a working model.

    The concept of a working model of a piece of music just does make sense.

    Nor does the concept that a piece of software is solely an expression.

    • Salin's free speech argument depends only on the claim that software is expression. You have shown that writing software may involve invention as well as expression, but that does nothing to undermine Salin's argument. Consider the example that he gives of patenting plot devices or narrative structures. If one can patent "boy meets girl, boy loses girl, boy wins girl back" then one then one can prevent anyone else from producing a new expression that employs this old narrative structure. Salin's point here
  • The difference between software-as-expression and software as utility is as simple as this: nothing in patent law prevents you from expressing the idea that is patented, in whatever form you want. What is prohibited is making use of it in a way that infringes on the patented utility.

    Another point I think is worth making is that I'm left quite uncomfortable by this particular diatribe against software patents. Here's why: I tried reading it while replacing each instance of "software" with "invention", and

    • > I tried reading it while replacing each instance of "software" with "invention", and it makes almost as much
      > sense.

      Thats exactly the point. I just cannot convince myself that "software" is always
      synonymous to "invention". A progress bar, a scroll bar, using your browser to purchase
      items ... how are these inventions ?

      Going a bit further ... an "invention" is something that is hard to come up with
      and unless the citizens have good enough motivation to put in the effort to invent
      the soceity will neve
  • I am not exactly persuaded by Salin's argument against software patents as such, but I think he has one half of a very compelling legal argument against the permissibility of allowing both software copyrights and software patents.

    In the past a number of attempts have been made to challenge copyright restrictions on the basis that they violate the first ammendment. The Supreme Court has almost always held that copyright does not limit free expression because of the built in limitations in copyright law, and
  • Consider a 3D graphics chip. It's defined by a big file of VHDL. The file looks a lot like a C program. You can load it into a simulator and run it, slowly. That's how you debug. When it's debugged, you send the file to a silicon foundry to be made into chips. That's clearly a "writing", and it may contain ideas that are patentable.

    Machined parts are expressed as machining instructions cranked out by CAD programs. You can look at the part in 3D, then send it to the machine shop to be made. (Check ou

  • My DeCSS mirror [goingware.com] is all about Free Speech for programmers. It references a couple of appeals court cases that have held programming to be Free Speech, as well as one of Judge Kaplan's decisions that said it was not.

    I have had the page online for quite some time now, yet am quite surprised to have yet to receive a DMCA notice about. My hosting service hasn't received one either. It's especially surprising considering that the page places in the first page of results at Google for a search for content sc [google.com]

  • This reminds me of a discussion I had once in college. A fellow student felt his programming classes should fulfill his language credit requirements. I asked him to translate the constitution into Pascal. He tried to weasel it by making it a bunch of writeln's, but gave up when I pointed out that the constitution was still in English, he had merely written a way of putting it on a computer screen.

    The point I was going for is that at its heart a computer program is a set of instructions, not ideas or s
  • Can someone please spell out for me exactly what the differences are between copyrights and patents? I hate to be a n00b, but I'm not totally clear on this point.

  • My explanantion (Score:3, Interesting)

    by Jerf (17166) on Saturday August 30, 2003 @09:31PM (#6835911) Journal
    My explanation of why Software Patents are oxymoronic [jerf.org].

    One point I think I made more clearly, that should have been made in that piece and would have fit perfectly, is that to my knowledge, only software is covered by both Copyright and Patents; it should be no surprise that two systems that were never designed to work together, basically don't! Copyright fits software much better then patents; that's a sign it should be treated under the copyright system and not the patent system. IMHO, I also did a somewhat more thorough job of exploring that point.

    Still, for a 1991 essay, that was pretty darned good.

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