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Alan Cox on Patent Law and GPLv3
Posted by
Zonk
on Sun Jun 10, 2007 09:43 PM
from the checking-in-with-the-cox dept.
from the checking-in-with-the-cox dept.
tykev writes "Linux kernel guru Alan Cox talks about kernel features, cooperation with hardware vendors, and software patents. From the interview: 'I don't think [Microsoft's patent threats] are the biggest danger. As Microsoft has been finding out recently it is the patent trolls, and organisations with buried patents in interesting areas that are the biggest threat in the USA. The real answer to that problem, however, is to pull the USA back into line with the majority of the world which simply does not recognize patents on software but respects them as literary works subject to copyright law.'"
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Ouch! (Score:5, Funny)
I thought the US is the majority of the world...
At least my TV says so.
Re: (Score:3, Funny)
He's Right (Score:4, Insightful)
Linux (and OSS) needs to support Windows. To do that, (in theory) they need to infringe on MS patents. It really is in Microsoft's best interests to allow this to happen, as it keeps people on their protocols, and tied in to their software.
The point of the threat was to scare commercial OSS users (the ones that can't take the PR hit of a lawsuit) into buying the Novellisoft "covenant" thingy that people have been bitching about. They never would have even sued those companies the Novell deal targeted. It just doesn't make sense, and would destroy their image even more.
Their plan? They know the power of open-source software. They know how well it works together, and with proprietary software (I think you can even use a Samba server to be a PDC in a Windows domain). They just want to keep people using their software in some form, rather than not at all. (If I didn't want to get sued, I'd force Windows to work with NFS, not Linux to work with SMB, or become an all-ODF shop...) This way, they can still cling on.
Re:He's Right (Score:5, Insightful)
When I buy a car, I can take a sludge hammer to it. I can chop it up into tiny pieces and re-sell it. I can repaint it, put new seats in, I can even replace the engine. Why should software be any different? Are there any other industries protected by such a strong veil?
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Re:He's Right (Score:4, Insightful)
No, you didn't. You paid for the right to use software - for some very specific rights, actually; not even all you'd wish/can think of/consider are entitled to.
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Re:He's Right (Score:4, Insightful)
You were doing great until that last sentence. Microsoft wants everyone to use Microsoft software, everywhere and all the time. This latest round of manoeuvres on the patent front is simply one aspect of a concerted attempt to de-commodify software, standards and protocols.
This is not news. We've known since the Halloween Documents [catb.org] first appeared in 1998 that they might do this:
Protocols are by their nature immune to copyright protection, but not to patents. It seems clear that Microsoft sees patents as a necessary weapon in their fight against open standards. I think they're right. Software patents are anathema to open standards, and that's why software patents have to be stopped.
For my part I find it a little disturbing that people who've been in the FOSS game for this long should so easily forget this. Microsoft's take on the patent issue seems to be that they're big enough to cope with the madness of patent litigation. They'll take some hits in the short term, but ultimately, they'll end up holding enough of the patent pie that they'll be unassailable.
FOSS, however, suffers far more than Microsoft ever could. Even today, the presence of sharks in the patent waters might be enough to stop the next Linus Torvalds from sitting down and writing the Next Big Thing, or perhaps to convince the next Richard Stallman that the battle is already lost. The more they drive developers into the embrace of large corporations, the more they can influence - if not dictate - the directions software development takes.
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How to compete? (Score:5, Interesting)
How can people stay positive on an economy that seems neither ultimately market-based rather than litigation based and where what used to be virtues (hard work, creativity, taking a chance) are punished by the government and unworthy trolls/big_players get the gains instead?
Satire (Score:5, Funny)
20 years! (Score:4, Insightful)
Simplify the whole thing (Score:4, Interesting)
A piece of code can be protected by patents, can be copyrighted, trademarked and even held a trade secret (closed source). What's so special about software that it mandates so much protection? I'd love to see just one protection available for software. For instance, if it's trade secret (closed source) then you don't get patent or copyright protection. If it's open source, then you get only copyright protection. For really core and non-obvious algorithms, you can get patent protection, but you will lose copyright protection in that case (say you will need to submit the code as part of the patent application, making it public domain).
Re:One extreme to the next (Score:5, Insightful)
Then you can't copy paste code , but every time you write a program from scratch you don't end up infringing 2347 vaguely worded patents preventing you from implementing even the most trivial computer tasks.
I think you do not know what patents en copyrights are.
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Re:One extreme to the next (Score:5, Informative)
Actually, it's not. Copyright pertains to the expression portion of software, but not the underlying ideas, functionality, etc. Ultimately, maintaining this distinction takes priority over copyrightability. For example, where there is only one or only a limited way of expressing a given idea, the idea and expression are considered to have merged, and there cannot be a copyright, lest it effectively protect the uncopyrightable idea. This is known as the merger docrine.
There's also the scenes a faire doctrine, which makes uncopyrightable things like stock story elements. For example, in horror movies, someone originated the routine bit where the mood is set when you see a wolf howling, silhouetted against the moon. But it's unprotectable since it's a common, stock element. The doctrine is used in the software field, both for elements which would be common across much software, as well as for portions of the code which are dictated by external considerations such as efficiency or platform compatability, and so lack some originality.
Finally, there's the fact that copyright infringement has nothing to do with identicality, but rather has to do with originality. That is, it isn't unlawful for Alice's program to be identical to Bob's program, so long as Alice didn't copy her program from Bob. For many works, independent creation -- when it happens -- can still be tricky to show. But for closed source software, it would be tricky for the alleged infringer to have seen the source. The accused would want to have kept some records to help vindicate themselves, and if they did have some kind of access (e.g. Alice used to work for Bob's company and could reasonably have snuck a copy out), they'd have a pretty strong case. Reverse engineering can qualify as access -- e.g. if you decompile the binary -- but again, the underlying functionality isn't protected by copyright, only the way in which it is expressed can be, subject to the limits discussed above. That's why cleanroom reverse engineering is a good strategy to follow.
You might also want to look at the abstraction-filtration-comparison test in the Altai case to see how courts will often compare two pieces of software to see if there has been infringement.
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Re:One extreme to the next (Score:4, Insightful)
And after 20 or so years of seeing their proprietary code reverse engineered and opened up for the public to use, large companies like Microsoft decided that only Software Patents would turn back the rising open source software tide.
Sadly, for all of us, after they subverted the U.S. Patent system for their profit, they still failed to kill open source (is it even theoretically possible to kill an idea?)
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Re:One extreme to the next (Score:4, Informative)
The objection people have to software patents is due to the fact that they cover concepts, not specific mechanisms that embody those concepts. Your example of thousands of different and possibly overlapping compressor designs illustrates this nicely, because applying software patent principles to the hardware world would mean that somebody could hold a patent on processes that reduce the volume of compressable fluids which would (in summary) read something like this:
1) The fluid is drawn or pumped in from a higher volume source.
2) One or more mechanical processes reduces its volume by compression.
3) The resultant compressed fluid is then either used directly, or stored in a suitable compression vessel.
So all those thousands of compressor designs would have to pay royalties to whoever owned that single broad patent on "Compressing Compressable Fluids", even though the patent itself doesn't tell people how to do any of the things it covers, so it's completely useless to anyone who has to design a compressor. Then, when people were breathing a sigh of relief because it's at the point of expiring, the patent office grants an extension because the original owner added some "innovative steps":
4) If used directly, the compressed fluid can distributed via rigid pipes or flexible tubes.
5) In cases where it is stored in a pressure vessel, the vessel may form part of the device.
6) If it is not part of the device, and therefore is a separate component, this component can be placed in a storage facility.
7) Components in storage facilities from step (6) can be given or sold* to others who do not possess a device for compressing compressable fluids.
*Please see separate patent number 8199477728 "A Process For Giving Away Or selling Stored Compressed Fluids"
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Re:One extreme to the next (Score:5, Insightful)
If all software were public domain, there would be nothing preventing people from releasing GPL'd software as binary only, and refusing to share the modifications. (because there is no longer anything that holds them to the copyleft license)
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Re: (Score:3, Insightful)
Re:One extreme to the next (Score:5, Informative)
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Re:One extreme to the next (Score:5, Insightful)
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Re:One extreme to the next (Score:5, Insightful)
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Re:Respectfully disagree. (Score:4, Insightful)
little difference between the current admin and Microsoft.
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Re:Alan Cox can suck it (Score:5, Interesting)
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"Organically-evolved law"? (Score:5, Insightful)
The entire history of time until 1998: for the most part, neither algorithms nor business practices are held to be patentable, since they are both held to be "abstract ideas," which are not patentable. There are exceptions, but they are rare.
The State Street ruling [findlaw.com], 1998: Hey, let's change the legal test for patentable software from "causing a physical transformation" to producing "useful, concrete and tangible results". Vague enough for ya? Awesome. And while we're at it, let's also apply the same completely meaningless legal test to business practices, too!
The history of software patents since 1998: One patent on Zocor! One patent on Viagra! SIXTEEN patents by Microsoft of movement and positioning of a cursor! Gee whiz, maybe we should fix this problem. Oh, wait... we wouldn't want to "dismantle organically-evolved law from the top-down", because Anonymous Coward says that such actions always result in DISASTER!
"Dismantle organically-evolved law from the top-down". Fantastic. What the hell does that even *mean*?
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Re:Alan Cox can suck it (Score:4, Insightful)
That only worked because the founders were remarkably principled and selfless individuals. If any of them had been Stalin or Robespierre type figures who believed they should have absolute power, the American revolution would have been a disaster like the French one, or the Russian one. Or pretty much any revolution apart from the American one in fact.
Americans are right to celebrate their founders, particularly George Washington. He could easily have ruled until he died and then found some constitutional device to pass power to his heir. As Jefferson put it
"The moderation and virtue of a single character probably prevented this Revolution from being closed, as most others have been, by a subversion of that liberty it was intended to establish."
Comparing the first post revolutionary leader to a project manager is disingenous in the extreme. You basically need to have an almost perfect leader in this situation who will allow a system to be set up which will constrain his actions to set a precedent for his successors. It's all to easy to use real and imagined threats to the regime as an excuse to set up a tyranny.
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Re:No s***. But "recently"? (Score:5, Insightful)
The whole idea of the patent troll is that they don't have any business to defend so that they can use their patents offensively without worrying about (non-karmic) retaliation.
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Re:Wait For It (Score:5, Funny)
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