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

Anthony Towns aj at azure.humbug.org.au
Thu Aug 12 23:09:02 UTC 2004

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.

> 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".

> Can you envisage a system whereby the quality and novelty of the patents 
> can be certified? 

They're already certified by the patent office by having a patent be
granted, or by the courts in having the patent upheld. I'm not familiar
enough with IP Australia to critique its methods.


] IP Australia conducts regular recruitment rounds seeking suitably
] qualified individuals in science and engineering to train as patent
] examiners. These positions offer an interesting mix of technical content
] and legal analysis where you will help to determine the patent protection
] available for new inventions and innovations. As an Examiner of Patents,
] you will be one of the first to view the results of technological
] innovation and scientific research.

    -- http://www.ipaustralia.gov.au/about/jobspatexam.shtml

> If not, then can any patent system be just and morally defensible?

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.

> 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?

Patents aren't there to just tax your competitors, they're also there
to stop them from competing outright. You don't have to license your
patents; if you think you can make more money by selling your product at
a higher price without any competitors than you could by licensing the
technology, that's entirely okay. So differentiating "revenue accrual"
and "legal bullying" isn't reasonable -- "revenue accrual" is done *by*
"legal bullying" and, shall we say, "royalty extortion" or both. Patents
are, quite explicitly, anti-competitive tools -- they create a monopoly in
a given technology *by design*. When they're working properly, they're
still ugly.

That said, IBM's reported to have made around $500M in patent licensing
revenue in 1999, and more since. Fraunhofer presumably make a fair
whack of cash from their mp3 patents (some millions of Euros per annum,
apparently). Apparently the RSA patent didn't make much money out of
licensing, but rather allowed RSA,Inc to establish a loyal customer
base and get bought out for a decent price, though there seems to be
some indication they were paid in shares/options instead of cash too.

> 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?

*shrug* The obvious comment is "but they'd probably do much better
if some IP ownership was possible." The less obvious comment is that
"architecture" doesn't stand alone -- it makes use of "civil engineering"
where patents are entirely possible.

But I'm not wildly in favour of patents, so if you're looking for a strong
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?

> > 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.

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.

I don't think that's the case here, of course, but I could be wrong.

(I'm not sure what the point of getting me to play Devil's advocate here
is if you're trying to understand what I actually think...)

> > > 4) As they do exist, should the SME software industry work towards their
> > >    elimination?
> > Most of the SME software industry is unaffected by them. [...]
> Removing the possibility of producing inter-operable products can and will 
> affect SMEs as much as it does larger software players.

Well, it's a free country, so you can think whatever you like. But that's
not a Scientific Fact you're stating there. If you're trying to get me
to change my views, you'll need to do a better job of persuading me than
just baldly stating the conclusion you'd like me to reach.

Err -- I assume of course you weren't being ironic and we weren't meant
to read in an implied ", ie not at all" at the end.

> > 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. 

No, they're not. They're used for purposes that don't involve illegal
copying, aka "legitimate purposes". But their sole purpose is to
circumvent technological protection measures -- they don't do anything
else -- so even when they're used for legitimate purposes, they're /still/
circumventing things.

> 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)

> > 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.

The point being that in the case of a larger program, such as xine,
the circumvention aspect _doesn't_ (necessarily) take precedence over
the other aspects. (IANAL, TINLA)

> > 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.

       v 1: act in disregard of laws and rules; "offend all laws of
            humanity"; "violate the basic laws or human
            civilization"; "break a law" [syn: {offend}, {infract},


> 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. 

Ooo, ~powerful~ people. Colour me awed. (Or colour me purple -- anything
for alliteration.)

I was raised to believe that I shouldn't change what I thought or how
I acted merely because of the attention of "powerful people". So I fail
to see how their attention "transgresses" anything above.

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

Uh, whatever. I don't think patent law is any more or less immoral than
copyright law.

> No code should be illgal to write. Period. 

You're welcome to think that. I happen to think it shouldn't be illegal
to start up a company to work on anything either, but it is. That's
life. Big deal.

> 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.

Ideas in engineering books can be patented quite easily.

> 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. 

That's nice. I can't say I see the relevance, though.

> One which, to be honest surprises
> me, considering the depth of your involvement in and the caliber
> consideration of the issues.

So re-examine your assumptions.
> Digital freedoms are being eroded in a manner impossible with non-digital
> freedoms. 

Except they're not /being/ eroded. They _have been_ eroded. Years ago. The
negative changes required by the FTA are mostly entirely trivial --
you're no longer allowed to use products that you couldn't get in the
first place, eg.

> Few see the repercussions until it's too late. Technologists who
> have clue have kept quite. For too long.

Pfft. It's easy to claim we knew about all these problems ages ago,
but we didn't. Consider these submissions into the original Digital Agenda

  * SAGE-AU: make sure security research isn't treated as "circumvention"
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub2.pdf

  * Stephen Dawson: exclude DVD region coding from being a TPM because
    otherwise we won't be able to play region 1 DVDs on our region 4 players
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub9.pdf

  * Ms Anne Fitzgerald: security testing needs to be legal
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub28.pdf

  * Aust. Libraries Copyright Ctte: "The DA Bill Strikes a Reasonable
    Balance", temporary copies are a concern, permitted purposes for
    circumvention devices should be expanded
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub34.pdf

    Ditto from:
     Aust. Digital Alliance
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub42.pdf
     Supporters of Interoperable Systems (Jamie Wodetzki; Sun related, aiui)
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub43.pdf
     Australian Library and Information Association
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub47.pdf
     Australian Consumers' Association
      -- http://www.aph.gov.au/house/committee/laca/digitalagenda/Sub52.pdf

See http://www.aph.gov.au/house/committee/laca/digitalagenda/submiss.htm
for the rest; the above are the only ones I know of that're likely to
be particularly friendly, fwiw.

There's a difference between "concern over the affect on security
research" (which is what we had at the time) and hoping that we could get
more broad based exceptions (which naturally we did), and having a real
knoweldge or understanding of what the effects would be: not being able
to write DVD software, not being able to read PDFs, giving Microsoft an
opportunity to stop people from being able to interoperate with MS Word.

But that's okay -- because this is just copyright, it's no big deal if
we're a bit late in seeing the repurcusions. So it's difficult to watch
DVDs under Linux, big deal.

The temporary copying issue's interesting; the FTA implementation bill
that's in parliament already basically decides that issue in our favour
at last. It's not all about eroding freedoms; this one's one we've never
had before.

And hey, it's not even like no Australian Linux user has ever managed to
encode an mp3 under Linux, or play a DVD under Linux, even though our
patent and copyright laws might make both those things illegal. Taping
shows off TV and exporting crypto have been more or less illegal for
ages too, for that matter. No one ever does either of those, either.

> 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.

You don't shine a light for others to see by talking about things that
you don't understand and getting them wrong.


  FUTURE, n.  That period of time in which our affairs prosper, our
  friends are true and our happiness is assured.


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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