Freedom of Speech in Software 250
akpoff writes " I've been struggling with the question 'what's wrong with software patents' but haven't been able to find the right words. I was over at John Gilmore's website and found a link to John Salin's 'Freedom of Speech in Software' letter to the USPTO back in 1991! This is one of the best explanations I've seen. He reminds us that computer programs are essentially like literature or music -- they are expressions of ideas. Just because they run on a computer doesn't make them uniquely different from other creative mediums. We should think player piano (patentable) vs the music (copyrightable but not patentable) it plays. Europeans -- put this letter into the hands of your MEPs!"
Why the focus on software patents? (Score:0, Insightful)
fantastic (Score:3, Insightful)
But if code is like music... (Score:5, Insightful)
Yeah but (Score:5, Insightful)
It's not just what's wrong with software patents. (Score:5, Insightful)
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.
Computer science is too young for patents (Score:5, Insightful)
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.
What about the compiled programs? (Score:1, Insightful)
So isn't this whole "software patents" thing actually good for OSS, in that it will only make it harder to distribute proprietary software in its compiled form?
I love software patents (Score:0, Insightful)
Oh boohoo my job went to India, oh boohoo software patents ruined my small business, boohoo some paid off politician banned my program, blah blah fucking blah...
I mean hey everyone likes capitalism right? Then I have no sympathy for you when it finally crushes you and turnes you into an alienated little being in a cube living life vicariously through the media corporations.
I love it.
I just can't wait till the next world war, with the proliferation of nukes that is gonna be fun!
I disagree (Score:5, Insightful)
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.
better arguments (Score:3, Insightful)
Talk about things like the Amazon one-click patent, I'm sure a quick search here will turn up plenty of examples of absurd patents.
THOSE are the kind of arguments politicians understand.
Re:But if code is like music... (Score:3, Insightful)
Would you want music that uses chords that have already been used before to be illegal?
Re:What about the compiled programs? (Score:4, Insightful)
I can write a piece of music with a pencil, using standard musical notation. I can also punch holes on a roll of special paper in exact positions so that a player piano (a machine) can then reproduce the music as I intended. The process of doing this may be patented. The melody I write is copyrighted. Does my translation from human-readable to machine-readable media somehow change the nature of what the music is? Why should my song be patentable just because it's on a player piano roll?
If another person came up with the same tune that I did, but can demonstrate that they did so independently, they are not guilty of infringing my copyright, because they didn't copy from me. If each of us makes a piano roll of our respective songs, this is still true. Why should I be able to patent the piano roll of my song, but not what I wrote with a pencil?
Not fantastic by email (Score:1, Insightful)
And unfortunately your MEP almost certainly will not read your email because like all MEPs they get far too many emails every day to bother reading them all. If, however, you took the time to visit your MEP and discuss the article face-to-face that would probably have much greater impact.
The problem with patents (Score:3, Insightful)
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.
The analogy is not entirely valid (Score:3, Insightful)
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.
Re:What about the compiled programs? (Score:3, Insightful)
This is a confusion of what a compiled program is. A compiled program is also code--machine code--and hence a valid form of speech, even though only intended for a computer. There is no reason not to believe that the compiled program could have (not as easily) also been produced by a person--it certainly can be read by a trained individual.
Compilers translate one form of expression into another. The letter expressly indicates the difficulty that patent claims make in light of machine generated software (amongst other things).
Granted rights? Natural rights? (Score:5, Insightful)
So you are saying that because European governments tend to tax higher in order to support a richer welfare system that EU countries will also suffer more violent crime?
This is the strangest anti-state argument I've heard in a long time, and I'm really unsure what it has to do with patents.
If anything, the European-style welfare systems achieve something quite extraordinary: a society in which the poor and the weak always find support, and a society in which spare time is valued over simple wealth, demonstrated by the long holidays most Europeans enjoy.
Violent crime has its origins in things very different from high taxes (again, this linkage boggles my mind, the high-tax countries in Europe are generally the most calm, think Scandinavia and Belgium). Violent crime comes from organised criminal gangs who operate where the state is weakest. This happens when the state fails (in places like Albania) or when the state loses control over large segments of the population (in drug-ridden inner cities). A strong state is almost always a good cure for violent crime, but so is the avoidance of criminalising anti-drug legislation.
You want violent crime? Look at the USA in ten years' time, when almost 1 in 11 men will have been imprisoned at one time or another, and 1 in 3 black Americans will have a criminal record. Somehow, taxes and patents are not behind this. Bizarrely punitive lawmakers and courts, yes.
The EU is a nice place to live and work, and the union will last for much longer than people like you expect.
Re:But if code is like music... (Score:3, Insightful)
You misunderstand efficient software development, and the impact of software patents...
Most software is developed on top of other software, or other software ideas. For example, Mozilla is based upon HTML which is based upon HTTP which is based upon TCP/IP, and so on. If you patent a particular peice of software, then you limit the extent to which people can innovate on top of it.
And even if people do develop code that "rips off" existing ideas, we do want to encourage that. Think about MacOS, Windows, KDE, GNOME, and any other desktop environment - they all rip off ideas like "windows", "progress bars", etc. and reimplement them in their own way. Would you prefer it if we only had one desktop environment, protected by patents?
Pure software is meant to be covered by copyright, so that if you want to copy my idea, you have to do all the coding yourself (unless I use a Free license), meaning that essentially you do the same amount of work as me. This is ample IP protection for people who want to make money from software, as the past 40 odd years have shown.
Patents should only apply when the software is applied in inventions that use the natural sciences, not theoretical ones, e.g. in embedded software for a GPS system, but not in generic software like a progress bar, one-click shopping, etc.
I'd rather them be patents than copyrighted. (Score:3, Insightful)
Just a thought.
Re:What about the compiled programs? (Score:5, Insightful)
You clearly aren't a programmer. I have written code directly in "compiled" (numeric) form.
I'll certainly admit it isn't the easiest form to read and write it, but there is no question that it is readable and writable. There is no real division between source and "compiled". They are merely different translations of the same thing. And there is no need to compile it at all. Absolutely any language can be run in interperted mode. The source code and executable code are identical. Compiling just helps it run faster.
You think a compiled program becomes a "tool", and as such it it's ok to put all sorts of restrictions on it restricted. This is the exact same error the authors of the DMCA made. They claim they are outlawing "piracy tools". But consider this: The DMCA makes it a crime to descramble encryption, no matter how you do it. But you don't need a computer to descramble something. You can "run" a program (tool) in your brain just by thinking through each step Your brain is the computer and a sequence of thoughts is the program (tool). It may be slow and laborous, but absolutely any program a computer can run can be run by pure thought. So by sitting motionless and just thinking certain thoughts you can descramble a DRM encrypted book to read it and commit a felony!
The DMCA says you can go to federal prison for ten years for sitting motionless and thinking certain prohibited thoughts.
Non-programmers seem to thing that computers and software are myterious and magical. They aren't. Software is just a peice of writing, a sequence of steps just like a recipe for baking a cake...
Step 1)Soften butter, and mix with 1 c sugar (leave behind 1/2 c to mix with egg whites).
Step 2)Sift flour, baking powder, and salt, together twice, then add to butter/sugar.
Step 3)add milk to the mix.
Step 4)stir until uniform.
Step 5)whip the egg whites (if you dont have a wisk try a fork, but it takes longer), and slowly add the remaining 1/2 c sugar (what you now have is called a meringue).
Step 6)add meringue and vanilla to batter, and mix again.
Step 7)bake in two 8 or 9 inch round cookie pans which have been greased and flowered. bake at 350F for 35 minutes.
That's all software is. Compiled software is the exact same thing, it's just written in a way that is easier for a computer to understand.
The only thing special about computers is that they are able to follow the instructions really really fast and bake 1000 cakes a minute. A person can always follow the recipe themselves and bake a cake.
Recipies get copyrights, not patents. Does it really make sense to grant a patent on the idea of any sort of Flambe? Even worse they are granting patents on the idea of seperating an egg yolk from the egg white.
A program is no more a "tool" than a recipie is.
Yeah, a computer is a tool that lets you use a program really fast, and a commercial baking plant is a tool that can run a recipe real fast pumping out thousands of cakes. Computers and bakery plants are tools. Software and recipies are just written instructions.
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The guy just doesn't get it (Score:3, Insightful)
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.
Re:Granted rights? Natural rights? (Score:3, Insightful)
Secondly, more fundamentally, your assertion that the balance between "natural" and "granted" rights somehow implies a conflict between groups and governments. The conflicts are there, yes, and they are important, but they come from other much simpler reasons. What you eat, I can't. What you burn, I can't. What you take, I can't. Thus conflict is the simplest way of increasing one's well-being. But it's not the only one, and all human cultures survive by implementing sophisticated conflict avoidance mechanisms, between people and between groups. Trade is one of these. Social welfare another. Armies of poor people make fodder for wars, as Europe has discovered many times.
The rest of your argument is based on what are, to me, fallacies, and you if you take your ideas to a logical conclusion I think you will see they don't make sense. High taxes leading to crime is one good example.
I live in a high-tax country (Belgium) and I am aware of the extent of the black economy. However, this is not a criminal economy except in the eyes of the tax authorities. When the government makes unenforceable laws, people ignore them and life carries on, pretty much as normal.
The criminal networks seem to arise in one very specific situation, which can have many causes. This situation is when the state retreats from enforcing its law in some area or segment of society. I gave some examples already.
Why is the state so important as a law enforcement agency? This question lies at the heart of the matter when it comes to violence and criminal violence.
It has been shown often that violence is self-perpetuating, and for good reason. If your neighbour is likely to come and rob or injure you, you have every interest in going across to his place and doing it to him first. Self-protection means being more aggressive than strictly necessary, since under-aggression leaves one vulnerable. The logic of this is implacable, and leads to vendettas and other extraordinary symptoms of violence.
The state cuts through this cycle by defining itself as the only legal hand of violence. Crimes and punishments are defined a priori, and though this does not necessarily deter crime, it deters the cycle of violence that follows crime.
In every historical instance where a police force is instituted, crime rates fall sharply. A corrupt and violent police force is much, much better than none at all.
Now, how does this fairly successful system sometimes break down? One case is when the victim of a crime cannot go to the authorities. Criminals tend to resort to extreme violence not because it's in their nature, but because they revert to the non-state logic of crime and punishment. And when illogical laws - such as prohibition of alcohol or drugs - creates large "criminal" communities, extreme violence is a natural and inevitable consequence.
The best answer to all this appears to be twofold. Firstly, human nature is basically and generally good, because that is more successful in the long term. Secondly, for this to work we need a strong civil society backed-up by a strong but even-handed state.