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

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

On 08/01/07, Stephen J. Turnbull <stephen@example.com> wrote:
> Fergal Daly writes:
> 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.

Sorry, I'm confusing my Euro and US patent situations. See below.

>  > 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.

By "enforceable" I mean will not be invalidated by the first court
that looks at it. There are plenty of patents that have been granted
and then invalidated when they were challenged.

Anyway, I'm confusing my European and US patent stories. It's the EPO
not the USPTO who were (and still are) handing out SW patents even
though the legailty of them is in question. No one is trying to use
them because they may not stand up. Those who would like to use them
seemed to be waiting until the law changed to clarify the situation.
It looks like that might not happen now.

>  > 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.

The law is supposed to promote the development of the useful arts. I'm
not sure what analysis you're referring to. The analysis of whether
the law _does_ promote the development of the useful arts is not
trivial, otherwise the software patent issue would have been settled
long ago. What analysis are you saying is trivial?

>  > 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.

Couldn't the supreme court could declare the law unconstitutional if
it was shown to stifle development. This is what Lawrence Lessig tried
to do with the ever-growing copyright terms. He failed but he was
given a hearing so I'm inferring that there was a possibility that his
argument would be accepted. I don't think anyone has ever brought a
case against SW Patents on consitutional grounds but it seems that
economic consequences would be directly relevant there, although very
difficult to prove.

>  > 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.

The EU commission's push towards SW pats is not based on a serious
economic study. I believe you are referring to this document (1st
link)

http://www.google.com/search?q=%22The%20Economic%20Impact%20of%20Patentability%20of%20Computer%20Programs%22

which has ten pages of vague disucssion about the economic effects,
many of which are negative. See
http://swpat.ffii.org/papers/indprop-ipi00/index.en.html for more
discussion including this great comment from one of the authors, "In
that study I had to find some macro-economic arguments in favor of
software patents. My two co-authors were patent lawyers and it was
their conviction that such arguments exist. For them it is a question
of conviction. Without arguments in favor of software patents, we
couldn't have finished the study".

I'd be interested to see the other pro patent studies.

>  > 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.

Right, so there's an example of license problems preventing reuse but
you seem to be saying that somehow more proprietary licensing would
make for more reuse. Yes it sucks that every function on my computer
can be done with KThis and GThat and they have slightly different
features etc but within the K-world and the G-world there is a lot of
reuse.

> 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!

glibc is a slightly different kind of reuse. Those other dozens of
implementations of the standards all run on their own platform. Sun
has one, HP has one, SGI has one, MS has one. glibs works on many
platforms. If I write a new OS, I can write my own libc from scratch
or I can reuse glibc. I don't know what the licenses are like but I
doubt there's any way for me to reuse any of those proprietary libcs.

Sticking with more usual forms of reuse, there's still ncurses,
berkeleydb, readline, large chunks of CPAN, rubyforge, python-thingy
(I forgot the name), libboost. Check how many packages on your OS
start with "lib". Some are used by just one app but many of them
aren't. It's just not true that "the only time software developers
actually reuse software is when it's proprietary", I don't think its
even close to true. There's plenty of not-invented-here in the
proprietary software world too.

For fun I did

ldd /bin/* /sbin/* /usr/bin/* /usr/bin/* | perl -lne '/(\S+.so\b)/;
print $1' |sort |uniq -c |sort -n

and I got 603 lines. 174 are only used once but there is also

   557 libz.so
   360 libpng12.so
   358 libexpat.so
   338 libjpeg.so
...
   164 libgcrypt.so

Throwing away all the X, KDE and Gnome stuff easily leaves over 100
well reused libraries.

>  > 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

I don't understand what "socially beneficial reuse" means. How is it
different from other types of reuse?

>  > 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.

I don't understand the reasons for this non-reuse (maybe not wanting
to contribute to something that hasn't been assigned to the FSF, maybe
just being RMS). I still don't know how this is symptomatic of
non-proprietary software or would be improved by more proprietariness.

> 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.

I'm thinking of the betamax case for example
(http://en.wikipedia.org/wiki/Sony_Corp._v._Universal_City_Studios)
where the new circumstances were the existence of video recorders.
Maybe it would have been more correct for the legislature to address
that problem (you might say they eventually did with the DMCA) but in
practice the Supreme Court seems to do some of this work at least,
presumably because it's closer to the coal-face than the legislature.

I don't know about US Supreme Court but a colleague mentioned in the
UK a few years ago, the House of Lords (the last step on the law
ladder in the UK) specifically declared that it was not bound by it's
previous decisions. That is, it could change its mind in the future.
> From what you say, it sounds like the Supreme Court can't do that,

F