[tlug] RE: GPL V3

[stephen@example.com]

burlingk@example.com writes:
 > 1.  I am among the people that do not like the way they are trying to
 > merge software related restrictions and hardware related restrictions.
[...]
 > If TiVo wants to make a product that isn't easily modifiable, then why
 > should we freak out.  The device was not designed to be changed
 > regularly.  It was designed to work with their system, in a specific
 > manner.

Nothing advocated by RMS or Eben Moglen in any version of the GPL is
intended to prevent that.  Look up the early history of "Aladdin
Ghostscript" to get some insight into this.

 > 2.  Yes, their patent clauses are kind of scary looking.  I think I
 > understand that part though.  They are trying to cater them in a manner
 > to work with the current state of American Patent law.

I wish that were true.  Larry Rosen is an acknowledged expert on IP
law, both in theory and practice.  With only a minimal amount of
understanding of how patents work, you can read the clause I quoted
from the OSL v3.0 and know exactly what it is intended to do, up to
the judgment call of whether a claim is embodied or not.  Larry
assures me that that clause is also effective; a judge will not even
try to "interpret" it, because every term in it (except for the
mapping of claim language to actual "devices") is defined by
legislation or case law.

*None* of that is true of any version of the GPL ever published by the
FSF, whether as an effective license or as a discussion draft.  Surely
both RMS and Moglen know that is true.

 C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C

"I think they're turning Japanese,
 I think they're turning Japanese,
 like 'risshuu-more'."[1]

 C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C C&C

 > The patent laws themselves are solid, sound, and leave few loopholes for
 > people to screw things up.  That is not the problem.  The problem is the
 > judges that are passing out patents at the moment.

As Josh points out, it's not judges who are the problem.  It is the
underfunded, undertrained, and overburdened civil servants in the
USPTO.  Remember, the USPTO argued *against* software patents but was
overruled by a court.  That decision did *not* bind the U.S. government
to provide more resources, only to grant patents.

 > They are totally ignoring patent law.  They are passing out patents
 > on things that are either already patented,

This is actually rare.  And there is only one software engineer in
10,000 who is in a position to criticize---the software engineer who
rarely writes new code because he always uses library code.  Only that
software engineer has any idea how hard it is to to a good job of
searching for prior art---the rest of us don't even bother to try.

 > Under American patent law, a person cannot patent things such as "a
 > button to confirm a selection," or "a widget to create a button to
 > minimize or maximize a screen," or anything of that nature, because
 > those things are already pre-existent and commonly used parts of
 > existing works.  They are parts of almost every existing work since
 > about 1993 or so.  However, judges are passing out patents on just that
 > sort of thing.

Oh?  Quote the *claims*, not the abstracts.

What you say is quite possibly true.  But the fact is that unless you
quote the claims, we have no idea what has been patented.

I have never seen any evidence whatsoever that the things that you say
have been patented have been patented.  Note that there is every
reason to grant a patent on a new use of an old widget to create a
certain kind of button that had not been used in that way before.  But
the hype will say, "Patent Sharks LLC got a patent on GUI buttons!

Furthermore, even if Microsoft is unwilling to prosecute, say,
fluxbox's developers for having widget that creates a maximize button,
I'm sure they could find a way to transfer their patent to SCO, whose
lawyers clearly have no compunction about such lawsuits.  Viz. the LZW
patent or DeCSS.  A couple of such lawsuits would surely put OSS
desktop market penetration in the corporate sector back by 5 years.
Why aren't we seeing any?

 > Because this sort of patent has been being handed out left and right for
 > the last five years or so, they are trying to word the license in such a
 > way as to be solid and valid even if it comes up against patents that
 > are effectively illegal.

Unfortunately, all they've succeeded in doing is weakening the GPL by
making the language vague and subject to interpretation by both
licensors (remember the tiff between Linus and RMS?) and the judiciary.

What is happening here is very hard for me to interpret as an attempt
to make the GPL solid and valid.  The GPLv3 drafts *seem* to be
"intended to mean" what the OSL means in this respect.  But the OSL
*does* mean that; even a layman can verify that simply by comparing
the words in the license to 35 USC.  This is something else, and I can
only think that it is an attempt to steal intellectual property the
way Microsoft tried to steal Java from Sun.  RMS at least has no
ethical qualms about doing such things, because he denies the moral
existence of intellectual property (at least in software) in the first
place.  (It's of course possible that Moglen is just a bad lawyer.
Seems unlikely, though.)

 > ways they are being enforced is strange and bizarre.  The DMCA does not
 > say half of what the hype says.  It doesn't even really change copyright
 > law.

It doesn't change copyright, it's true, but it does criminalize the
exercise of rights granted under previous law, both in legislation and
case law.

 > on the rules.  HOWEVER, the judges and lawyers dealing with the
 > DMCA are not acting on the law itself, but on the hype that has
 > been in the media since about 1997 or so (a year before the act was
 > passed).

That's not true of judges.  Peruse the EFF pages on the DMCA.  What
you will find is any number of cases where *lawyers* have attempted,
and all too often succeeded, to intimidate people doing perfectly
legal things.  Judges, however, have consistently interpreted the law
in ways that I believe are fair.  And that's the EFF, which you would
expect to dig up as much dirt as possible.

 > All those rights that the hype claims we lose to the act, have
 > somehow become the defacto law.

Well, that's the way things work in "common law" systems.  Fair use,
first sale doctrine, etc.  These are aspects of the legal system of
copyright that people have come to count on, and in the past they were
not nullifiable by technical means.

The DMCA now comes along and says "what you were allowed to do in the
past, and was cheap and easy to do, can now be made relatively
expensive and difficult---so we're going to make it illegal."  People
argue that the rights of fair use and the first sale doctrine were
instrumental, like decriminalizing marijuana: schools were going to
copy, people were going to resell their copies of books, and this
couldn't be physically prevented---so legalize them.  While I think
this is a legitimate argument for decriminalization, it is *not* the
argument that justifies "fair use" and "first sale".  The argument for
fair use and first sale are a priori, based on the balance between
incentive to innovate and the social benefits of fair[2] use, and just
as valid in a world of "effective technical means" as in the world
without them.

 > this is what the hype says.  I do not know how many "innocent victims"
 > there have been of the DMCA,

Well, there's Sklyarov.  Of course, he was just as abusively treated
(though to much less actual harm) by RMS as he was by Adobe.

 > but I have heard just as many reports saying that there have been
 > very few people prosecuted under it as I have heard otherwise.

What you will discover is that there are few prosecutions, many
attempts at intimidation which are generally settled well in advance
of actually filing a complaint in a court.  The pro-DMCA people count
the former, the antis, the latter.  You will also find many examples
of the chilling effect: international conferences on encryption that
no longer meet in the U.S., famous programmers who will no longer
travel to the U.S.  To what extent these are political posturing, and
to what extent they are prompted by genuine fear of disruption or
arrest, is anybody's guess.


Footnotes: 
[1]  For the very young and non-Americans the C&C warning may be
unnecessary.

[2]  Note that this is "fair" as in "fair weather", not as in "fair
and equal treatment".  "Fair use" is use that is beautiful in the eye
of society.