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Re: [tlug] RE: Shuttleworth Interview at Red Herring (Roger Markus)



First off, you seem to be coming from the POV that software patents
_might_ be a good thing if done properly. I'm not convinced that's
true (I lean towards having zero software patents as providing the
most benefit but we're not arguing about that and I really don't want
to start :-)

On 06/01/07, Stephen J. Turnbull <stephen@example.com> wrote:
Fergal Daly writes:
In the U.S. the problem is not the judges, but the USPTO which is
woefully understaffed for its task, and the legislation itself which
basically is biased toward granting patents, and provides almost no
protection against patent-based extortion.  I don't know much about
Japan, but what little I do know suggests that the IP law here is
pretty hozed.  Eg, the way they've deliberately shot themselves in the
foot vis-a-vis search engines (cf. this morning's Asahi).

Despite it being the USPTO who first granted software patents, it was a court that ruled that they were valid and set the precedent. Until then no one was really sure if they were enforceable. It was not a foregone conclusion.

 > However it's fair to say they have little understanding of the
 > consequences of applying patent law to software the same way they
 > apply it to widget making.

*sigh* Same mistake you just tried to point out yourself!  Lawyers and
judges (especially the latter) have fairly good understanding of the
consequences of applying law.  But that's completely irrelevant.  *In
common-law (Anglo-American) systems, they simply care more about the
consistency of the law.*  And guess what?  They're right to do so.  A
consistent legal system is a much bigger deal than a bad patent law.
As the Japanese started to find out ca. 1995 ....

I don't think the court that set the precedent could possibly have known or understood the consequences of their actions and since subsequent courts follow that precedent, they are not analysing the overall economic consequences of software patents as a concept. The only consequences they need be concerned with are those relating to the case they're considering.

But in fact, *we simply have no clue about the actual effects* of
thorough-going application of patent law to software.  For 50 years,
people have been talking about reusable software and object
orientation[1], but the only time software developers actually reuse
software is when it's proprietary.  One has to wonder if a system
which actually enforced proprietary restrictions might actually have
the effect of inducing reuse.  ("Actually enforce" is in contrast to
the current system of screwing the unlucky and enabling extortion.)

I think you are talking here about some non-existent version of patent law (correct me if I'm wrong) or a differently applied version of the existing one, so yes I think you're correct that no one knows what effect that would have. There have been I think 2 seious academic studies of the effects of existing regime and they have concluded that it has slowed innovation.

I don't your comment about reuse at all. What about glibc, ncurses,
glib, gtk, kde etc etc? There is massive reuse of open, unpatented
libraries. You'll have to elaborate on that point. Some are GPL,but
some LGPL and thus resuable in proprietary software.

Note that Stallman has been badmouthing my project for more than a
decade, and has *never* reused anything we've developed since 1994.
In fact, he bitches like crazy that we reuse stuff developed by GNU
Emacs, and has recently decided that he's unwilling to relicense GFDL
documentation under the XEmacs documentation license (of which he and
Moglen are the authors, of course), forcing us to write the manual
from scratch even when we can use the code.  The point being that the
structure of free software allows people to be totally undisciplined
about reuse, and the most prominent opponent of software patents is
one of the worst offenders.[2]  Coincidence?  Not likely!

The BSDs are much better, of course, but even there there's a certain
amount of not-invented-here disease.  And does the world really need
97 scripting languages for the Web starting with the letter "P"?

Yes there are many examples of non-reuse but on several occasions, I've dug into the code of an existing project and shuddered. There's lots of badly written, un-resuable code out there (I'm not implying that's the case with XEmacs, I imagine that's more to do with certain people....). As for the various P languages, only PHP was intended as a language for web. The question really should be applied to languages in general. Each language scratches a different itch (or the same itch in a different way), as a Lisp-head (I assume this from XEmacs involvement) I guess you see each itch as at most a macro away from scratching and wonder when everyone else will get it. I wonder too but I don't think it will be until a language comes along as powerful as lisp and as accessible and brain-fitting as perl/python/ruby.

<snipped improvements to patent system>

 > For the lower courts though, they have no choice but apply it like
 > that. it's their job to apply existing law and precedent. It's only
 > when you get up to the supreme court etc that the judges are
 > supposed to start reversing precedents or radically reinterpreting
 > things due to new circumstances and subtleties,

That may be true in Britain or Ireland.

We had a pretty radical reinterpetting just a few months ago in Ireland.

 It is most definitely not
true in the U.S.  The role of U.S. judges, and especially the Supreme
Court, is to preserve the consistency of the law.  It's true that
justices are characterized as "activist" or "original intention"
according to whether they resolve conflicting precedents in favor of
addressing current circumstances or in favor of the closest possible,
literal-minded analogy to the problem the legislation was intended to
address.  But the degree of freedom they have is typically quite
small, and most decisions by SCOTUS are unanimous---the differing
opinions of justices will typically differ only in the rationale,
which may affect future precedents created by other judges.

If that's the case, why are there discussions about how a newly right-wing-ised the supreme court may overturn Roe vs Wade (abortion ruling)? Perhaps "radical reinterpretation" is too strong but it does reinterpret for new circumstances and does reverse precedents of lower courts,

F


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