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

["Fergal Daly" <fergal@example.com>]

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