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

Anthony Towns aj at azure.humbug.org.au
Sat Aug 21 23:09:02 UTC 2004

On Fri, Aug 20, 2004 at 12:43:02PM +1000, Con Zymaris wrote:
> Something to consider. A patent which is instantiated and used to create a
> specific product, for example, the RSA patent, should carry a lot more
> 'novelty' weight than a patent for a process which can form just a
> miniscule portion of an application, which is probably the majority of 
> existing software patents.

I'm not sure that makes sense per se -- RSA is only a fairly small
part of an application like ssh or mysql, eg. Whether something's
"miniscule" depends on how big the application ends up being, which
isn't particularly useful when you're deciding whether the "something"
can be patented without knowing what the ultimate application could be.

> As an analogy: you may patent a dazzling and novel new mousetrap, which is
> fine, but not a screw used in that moustrap, as well as many other places
> and has potentially seen use already (prior art.)

Sure, that makes sense to me; but it's not necessarily plausible. One of
the specific features of the FTA is a guarantee that the use of existing
drugs for new purposes is a patentable innovation -- same screw, different
mousetrap versus same drug, different pill, so to speak. That's probably
pretty important in pharmaceuticals, at least if the testing that goes
into ensuring a drug is suitable for other uses is as expensive and
difficult as I'd imagine it to be. But if it's appropriate for drugs,
it makes it very hard to make the case that it's not appropriate for

> My take is that unless the software patent process can be made 'near
> perfect', throw the whole lot out. 


If either of us were appointed Despotic Overlord of Australia for a day,
maybe either of those would be plausible, but as is that doesn't seem
like it furthers the debate.

There's a real problem advocating on this issue: it's obvious to anyone
writing software that patents aren't really any use, but it's equally
obvious to everyone who doesn't do software that ideas about solving
problems in software should have the same protection as ideas about how
to solve problems with sticks and stones.

Changing software patents significantly is a pretty large disruption
by now -- it means IBM and Microsoft not to mention thousands of other
companies suddenly have different business tactics, revenues and expenses
to worry about, not to mention lots of broken or unnecessary or suddenly
one-sided contracts to worry about -- so we need help from people who
know economics and laws to do it well, and the support of people who know
politics to do it at all; but the only way we've got of convincing anyone
that software shouldn't be patentable is having them write software for
long enough to understand the issues directly. And at least in the near
future, that simply doesn't scale well enough.

Other news:

Sony v Stevens has been granted leave to be heard by the High Court;
they'll be looking into the issues of whether modchips for Playstations
are a circumvention device (ie, are primarily for circumventing the copy
protection measures on PS2 games, or their use for backup and other
purposes is significant), and possibly whether copies of software in
RAM are "in material form" and thus whether the author's copyright thus
implies an access right for works that need a computer to be accessed
(this latter issue of Sony's might be academic -- the relevant copyright
issues for the Stevens case are the `material form' provisions which
are changed in the FTA in a way that almost certainly covers this use
when previously it probably didn't; but a new exception has been added
('incidental copies') that almost certainly makes use of non-pirated works
non-infringing no matter what the copyright holder desires)

A couple of weeks ago Stevens didn't have any legal representation;
there was, aiui, a hearing before the High Court on Friday to see how
this could be remedied for the benefit of Stevens and the Court, but
transcripts aren't available (yet?). LA/OSIA/ACS/whoever might like to
see what they can contribute wrt this.

Basically the High Court will be considering whether the first part of
recommendation 17 of the Digital Agenda Review report will be carried out:
``That the definition of TPM in section 10 of the Act be amended so as to
accord with the interpretation favoured by Sackville J in Stevens,
at first instance.''

(In English: Justice Sackville said that PS2 access codes weren't
a TPM because it was about region coding as much as copy control,
and thus that modchips that circumvent such things aren't prohibited
circumvention devices. This was overruled on appeal to the Federal
Court. The Digital Agenda review, after hearing evidence from media
companies, the BSAA, consumer advocated and so forth recommended that the
original interpretation made the most sense as policy -- whether or not
it was the right interpretation of the law as it stands. The High Court
will be reconsidering the interpretation of the law as it stands. The
changes to the law required by the FTA wrt this area are yet to be made;
and will probably be made after the High Court's ruled on this case)

Cf http://www.dbs.id.au/blog/law/stevens-special-leave-hca.html

This is probably important.


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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