[Linux-aus] Re: Software patents: Munich has put Linux project on hold!

[Anthony Towns]

On Thu, Aug 12, 2004 at 09:48:25AM +1000, Con Zymaris wrote:
> On Sat, Aug 07, 2004 at 01:50:14AM +1000, Anthony Towns wrote:
> > > further recommendations that needed implementation testing. 
> > > Under the FTA we lose a great deal of control over these laws, 
> > It's rather embarrassing to watch someone pontificate on IP when they
> > don't have a handle on the difference between patents and copyright.

> 1) Should software patents exist? If so, why?

I don't know. I can see the use for patents on things like RSA
encryption/signatures and mp3 encoding -- those are difficult
things to come up with, and are a massive advance in the state of the
art. I'm not sure that outweighs the costs, but I'm not sure it doesn't,
either. Certainly the US patent office has too low a standard for novelty,
but I'm not convinced that there isn't some standard that's reasonable. I
don't know what .au's standard is; iirc there is an mp3 encoding patent
in .au; I don't know of any other examples off hand though.

I'm of two minds about patents that affect file formats, like mp3
encoding.  On the one hand, working out how to do lossy encoding that
still sounds good is a highly useful invention; on the other hand, not
being able to transfer files between my mp3 player and my Linux laptop
is ridiculous. An alternative to saying "mp3 encoding can't be patented"
might be to say "Once you, as a consumer, have a patent license for one
device/programme/whatever, you don't have to worry about licenses for
other things, so you can use your Linux encoder to your heart's content".
If you don't want to pay for the patent, just use oggs; if you want to
use mp3s, buy something that includes a patent license, and then use
whatever you want. (My mp3 player records to mp3 too, so presumably
Fraunhofer have their cut from my wallet already) Restricting that
exception to only apply to free software (as in beer) could work too.

> 2) As they do exist both here and in the US, should the SME software 
>    industry work towards their elimination?

Rephrase: If the SME software industry had a magic wand that would
eliminate software patents, should they wave it? Probably. I don't
think that'd have any significant effect on innovation, and I think
that small/medium enterprises would /probably/ benefit on balance.

That said, there's no such wand -- big business gets a say too, and
they're presumably definitely against it at present. Given that, trying
to beat patents could be tilting at windmills -- which sucks up time and
money and staff from SME that can't afford it, and who just get blatted
out of play by big business, who get [mb]illions from patent licensing
anyway. SME's certainly shouldn't work towards goals that they have no
chance of achieving.

Also, it depends on the SME: SME's can make use of patents themselves
to make a buck. Some of the "software" companies whose sole revenue
stream is licensing patents probably come under the "SME" banner,
eg. And companies who actually create clever technologies and profit
from it in a manner compatible with patents can benefit from them too,
without necessarily becoming too large.

> 3) Should digital restrictions anti-cirumvention laws (like the DMCA) 
>    exist? If so, why?

That's a bit non-specific -- easy answer: yes, because that's what
parliament has said. For the laws not to exist, the rule of law and
Australian democracy would have to have broken down, which would be bad.

Better question: what purposes do anti-circumvention laws serve, what
bad secondary effects do they have, and how do those add up?

They serve two purposes: one is to make illegal copying more difficult,
the other is to control access. The mechanism for the blocking copying
is to block access, and at the scale where illegal copying has a
non-negligible effect, that's actually ineffective, aiui. There have
been numerous cases in Australia of DVD piracy recently -- that's a
testable hypothesis.

Preventing illegal copying is obviously desired -- otherwise we wouldn't
define the copying as illegal in the first place. Controlling access otoh,
isn't directly desired by society, but is desired by large publishers:
it gives them more control over the market for their content, which lets
them set prices more effectively for them, which lets them get more
money; cf parallel imports and region coding. It's fine that they do
that; just like it's fine for a bottle of water to cost twice as much
at a concert venue than it does at a corner store -- but it's not so
fine that they get to use either the police or the courts to help them.
(Small publishers don't have the resources to do market discrimination)

The costs (to society) are that interesting uses of works are
unnecessarily prevented, and that courts' and police time is wasted
preventing things like mod-chipping rather than real crimes that are
worth caring about (like actual piracy, or assault, or what have you).

I think the conclusion has to be that anti-circumvention laws aren't worth
having; but that depends on how effective they actually are or aren't at
preventing illegal copying.

> 4) As they do exist, should the SME software industry work towards their
>    elimination?

Most of the SME software industry is unaffected by them. In so far as
they prevent illegal copying, the SME software industry (minus the open
source segment, perhaps, though we don't like illegal copying of our
stuff either) should support the laws and make use of them. As taxpayers,
SME's might have cause to object, but probably not very much. I don't
really think anyone except free software types and consumers have any
reason to want to eliminate anti-circumvention laws.

Actually, depending on how the law gets interpreted, maybe not even
then. While modchips and deCSS.exe are circumvention devices, it's not
actually entirely clear that xine is, even if it includes code to decrypt
CSS encoded DVDs. Unlike patent violations, what's a circumvention
devices is a question of law, not a question of some company's whim;
so xine should get looked at under the same terms that cover licensed
DVD players. The only substantive difference then is that xine comes
with source, which in /theory/ doesn't actually matter.

None of those answers are really enlightening on the FTA though --
whether it passes or not, we'll continue to have anti-circumvention laws
and software patents in Australia, and to be affected by the laws that
are in effect in America when we export or import software.

Cheers,
aj

-- 
Anthony Towns <aj at humbug.org.au> <http://azure.humbug.org.au/~aj/>
Don't assume I speak for anyone but myself. GPG signed mail preferred.

``Like the ski resort of girls looking for husbands and husbands looking
  for girls, the situation is not as symmetrical as it might seem.''
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