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

[Con Zymaris]

Firstly,

thanks for putting your thoughts down so we can better understand the 
ideas behind your past comments.


On Thu, Aug 12, 2004 at 06:07:45PM +1000, Anthony Towns wrote:
> 
> > 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.


Can you envisage software technology advancing 'just as fast' without 
patents?

Can you envisage a system whereby the quality and novelty of the patents 
can be certified? If not, then can any patent system be just and morally 
defensible?


> 
> > 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.

Can you nominate any instances where big vendors have used software 
patents as a form of general revenue accrual rather than for legal 
bullying or rebuttal?

> 
> 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.

A member on the OSIA list raised the issue that in many other fields of IP 
endeavour, such as archicture, patents don't exist. This hasn't stopped 
both small and large architectural firms from making progress in their 
art/science.

Comment?


> 
> > 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,


Driving over the speed limit is also illegal. Cars are not fitted with 
speed chokes to stop them from going over 110 in Australia. Why should 
artificial restraints be placed on content?


> 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.

Removing the possibility of producing inter-operable products can and will 
affect SMEs as much as it does larger software players.

> 
> Actually, depending on how the law gets interpreted, maybe not even
> then. While modchips and deCSS.exe are circumvention devices, it's not

yes, modchips and deCSS are circumvention devices. But they are also used 
for non-circumvention purposes. Modchips in XBox are used to run Linux and 
deCSS on Linux is used to play DVDs, not copy them.

Why should the 'circumvention' aspect of these devices take legal 
precedence over the non-circumvention aspect? 

Likewise, knives can harm, but they are also very useful in the kitchen.
We don't ban knives because of their negative possibilities.


> 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.
> 

you are absolutely correct. However, let me tell you something which
transgresses all this.

The FTA has raised the negative issues of software patents and
anti-circumvention devices in a manner never previously possible. And
people are starting to listen. Powerful people. 

Software development, like writing, should only be protected by copyright.
Anything more destroys other people's intellectual property. This is 
immoral.

No code should be illgal to write. Period. If your code actually is of
malicious intent and does damage, then you should be punished as
appropriate. But merely writing the code should not be illegal.

The only reason patents have been allowed on software is because, unlike
books and writing which everyone reads and therefore comprehends the
process of creation, law-makers do not comprehend the process of creating
software. They can see how ridiculous the notion of patenting ideas in
books is, but they can't recognise the same in software.

I obviously can't tell you want to think on these issues, but I will
suggest that to sit back and just accept things as they are and hope for
the best is a fairly defeatist attitide. One which, to be honest surprises
me, considering the depth of your involvement in and the caliber
consideration of the issues.

Just because software patent laws and anti-circumvention laws are
presently in place, does not mean they will be in place forever.

Digital freedoms are being eroded in a manner impossible with non-digital
freedoms. Few see the repercussions until it's too late. Technologists who
have clue have kept quite. For too long.

Enough.

We define the future. 

If we don't shine a light onto the correct path, no one else will. Few
others see the repercussions until it's too late.

-- 
Con Zymaris <conz at cyber.com.au> Level 4, 10 Queen St, Melbourne, Australia 
Cybersource: Australia's Leading Linux and Open Source Solutions Company 
Web: http://www.cyber.com.au/  Phone: 03 9621 2377   Fax: 03 9621 2477