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

["Stephen J. Turnbull" <stephen@example.com>]

Fergal Daly writes:

 > Despite it being the USPTO who first granted software patents, it was
 > a court that ruled that they were valid and set the precedent.

No.  The USPTO for years *refused to issue* patents simply because the
devices were described as software, and the court told it that it
can't do that; it must review the patent applications on the merits.
The court did what it was supposed to do, and it was sustained by
higher courts.  The decision was impeachable, it was impeached, and
presumably the right decision (on the legal merits of the case) was
reached---in favor of the plaintiff, who eventually got his patent.

 > Until then no one was really sure if they were enforceable. It was
 > not a foregone conclusion.

*sigh* again.   Once granted, a patent is enforceable unless it is
invalidated.  The question is, can a patent be granted on software?
The USPTO decided it didn't want to deal with them; an applicant
appealed, and a court said that they cannot discriminate against
devices simply because they're implemented in software.

 > 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.

Who needs to?  The analysis is trivial: a monopoly is granted, which
results in restrictions on use and transfer of income to the patentee.
The latter is the purpose of a patent, as explicitly stated in the
U.S. Constitution; the former is an adverse side effect accepted for
the sake of the encouragement of the useful arts.  I'm sure that the
courts that hear such cases understand this---they mention it often
enough in their decisions.

Unsurprisingly, 35 USC as written at the time didn't mention
software.  However, that doesn't mean it doesn't apply; how it applies
is the business of the court to decide.

 > The only consequences they need be concerned with are those
 > relating to the case they're considering.

Precisely, if you restrict "consequences" to legal ones.  The
legislature may have screwed up social or economic policy when it
wrote 35 USC.  That is not the court's problem, and it would be
severely criticized, perhaps even impeached, if it tried to rectify
what it considered to be a mistake due to overbroad language.  That
would be changing the law ex post.

This legal system has worked well for the U.S. for 200+ years.
Mistakes are made and/or sustained, but there are much worse systems
(and there is no concrete example of a system that I know of that does
a better job, though there are several that are roughly comparable).

 > > But in fact, *we simply have no clue about the actual effects* of
 > > thorough-going application of patent law to software.

 > There have been I think 2 seious academic studies of the effects of
 > existing regime and they have concluded that it has slowed innovation.

No, there have been 2 serious studies promoted on www.gnu.org *because*
they concluded that it has slowed innovation.  There are several other
serious studies (eg, those on which the EU has based its current trend
toward adopting software patents) that have been promoted in several
venues *because* they concluded that it enables innovation.  But there
have been hundreds of serious studies by now, which don't get a lot of
airplay for various reasons.  The jury's out still.

 > I don't your comment about reuse at all. What about glibc, ncurses,
 > glib, gtk, kde etc etc?

If you can mention KDE and GTK+ in the same breath as examples of
reuse, I have to wonder what you're thinking, because surely you know
as well as I do that GTK+ != Qt, and that GNOME was organized
explicitly because the Qt license wasn't open enough, regardless of
the merits of the software.

It's also unobvious to me what it means to talk about reuse of glibc,
which implements the ISO C and POSIX library standards, of which there
are probably a dozen or so major implementations.  Is compiling code
originally targeted for FreeBSD on Linux and discovering it Just Works
reuse of glibc?  I don't know!

 > There is massive reuse of open, unpatented libraries.

Of course, in some sense.  But that's not the question.  The question
I'm asking is would there be even more reuse in *socially beneficial*
ways if those libraries were proprietary in some way.  The answer
without the qualifier is pretty obviously no; but the answer with the
qualifier is very controversial

 > You'll have to elaborate on that point.

I already did, as you quote:

 > > Note that Stallman has been badmouthing my project for more than a
 > > decade, and has *never* reused anything we've developed since 1994.

 > Yes there are many examples of non-reuse but on several occasions,
 > I've dug into the code of an existing project and shuddered.

It's not obvious that *doing* something about that shudder is the
right response.  This is a point that Fred Brooks made in his 20th
year retrospective on *The Mythical Man-Month*: it may be that the
right response is to swallow hard and get to work on the next project,
working around the weaknesses of the icky thang.

This urge to fiddle with minor breakage is a major frustration for me;
XEmacs sucks, and it sucks in major ways.  But it also sucks in a lot
of minor ways, and rather than do the important things, like get
Unicode inside or unify the file system interface around URLs, my
colleagues spend time on mostly useless things like updating
ISO-8859-7 support from 1998 to 2003 versions.  And right now I'm
suffering a bit because that fiddling resulted in further breakage.

 > 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,

The "right-wing-ised" Court arrived in the Reagan Administration, and
it hasn't overturned Roe v. Wade yet, despite 25 years of increasing
conservative influence.  And what is reversed is a "decision", not a
"precedent".  The difference is that reversing a decision means to
reevaluate it in the context of the original case.  That's not going
to happen in Roe; the decision of the Supreme Court is final.  To
overturn Roe, the Court will have to create a *new* precedent for
somewhat different circumstances, and Congress will have to write
legislation that takes advantage of that loophole without infringing
the principle of Roe.  This is not going to be easy; even right-wing
judges have their professional pride.

As for "reinterpreting for new circumstances", I don't know much about
that.  My understanding is that courts are not supposed to do it.
They are able to change the direction of future precedent by taking
new circumstances into account, but an existing precedent is an
existing precedent.  It may be reversed on the grounds that it was
wrong *at the time*, but adapting existing law to new circumstances is
the job of the legislature in the U.S. system.