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

[Con Zymaris]

On Fri, Aug 13, 2004 at 12:52:10AM +1000, Anthony Towns wrote:
> On Thu, Aug 12, 2004 at 09:48:34PM +1000, Con Zymaris wrote:
> > thanks for putting your thoughts down so we can better understand the 
> > ideas behind your past comments.
> 
> Hrm, it seems more like a cross-examination at this point than trying to
> understand, but oh well.

Crooss-examination is a form of understanding.

The volume of this exchange has grown to a point where it is difficult to
remain focused. So, I'll drill down into just a couple of the points you
make.

> 
> > 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. [...]
> > Can you envisage software technology advancing 'just as fast' without 
> > patents?
> 
> Of course. I can also envisage software technology not advancing anywhere
> near as effectively too. It might advance much faster too. If I was sure
> which was the case, I wouldn't have said "I don't know".

As mentioned, lack of patents has not stopped advancements in
architectural design, above and beyond any underlying civil engineering
technology. 

To my understanding, there were no software patents for the first 40 years
of the software industry. It didn't appear stop innovation. Quite the
reverse. These was more innovation in software engineering then than now.


> Huh? Patents are there to reward innovation, and thus encourage it. If
> they can do that, but still not satisfy you as being "just" or "morally
> defensible" then you should go talk philosophy with RMS or someone,
> because that just doesn't interest me.

Copyright is there to do the same thing, and it doesn't trample on other 
IP holders' rights.

>
> defense, you'll need to look elsewhere. Pointing at other fields isn't
> very helpful unless you're going to be arguing that no patents should be
> offered anywhere, for pharmaceuticals or for better mousetraps or for
> anything; otherwise you're already acknowledging fields are different,
> so why should we assume that software's more like architecture rather
> than drugs?
 
If pharmaceuticals could be 'copyrighted' then they too shouldn't need 
patents either. But they can't be, so they need patent protection. 

More importantly, there isn't a large case history of pharmaceutical
firms being awarded bogus patents, as there is in the software and
business process space. This is a killer difference.

> > > 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?
> 
> Why shouldn't cars be fitted with speed chokes? Because someone might
> need to go over 110 in order to pass a semi, because they've already
> (stupidly?) committed themselves to overtaking, and now discovered they're
> about to be in a head on colission -- better to break the law and cop the
> fine than to die. Well, more likely, because having people actually stop
> speeding would stop speed cameras from being effective revenue raisers,
> but anyway.
> 

This avoids the key question. There _are_ sometimes legitimate reasons why
drivers need to go over the speed limit. This is why there are no speed
chokes on cars. Similarly, there are legitimate reasons why DVD owners
will want deCSS to watch DVDs. If drivers are caught going over the speed
limit, they should be charged. If DVD owners are caught infringing
copyright, then they should be similarly charged.  Neither process should
be choked off automatically by the machinery.

Agreed?


> If we could come up with a technology that did nothing other than prevent
> illegal copying, it'd be a good thing. We can't do that, of course,
> but we might be able to come close to it, and sometimes close enough
> can be good enough.

This isn't good enough.  Not if it has serious on-flow repercussions.

...

> > Why should the 'circumvention' aspect of these devices take legal 
> > precedence over the non-circumvention aspect? 
> 
> I'm not saying it should; I'm saying it _does_. (IANAL, TINLA)
> 

Irrespective of whether this is implemented or cemented by the FTA or by a
preceeding law, my question is: shouldn't effort be made to ammend this?  
Shouldn't legitimate uses be recognised? Or are you saying that bad laws 
can't be or shouldn't be changed?

--
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