Re: PCT (Patents, Copyright, Trademark) policy and Open Source
On Mon, Jan 26, 2004 at 10:06:10AM -0500, Russell McOrmond wrote: I believe that with the speed of software innovation that comparing 20 years to 50 years (or 75-95 in the USA - I forget how far the USA has gone) for exclusive rights in software is like having a philosophical debate about whether infinity or infinity-minus-one is larger. Patents get 14-20 years depending upon the type of patent: http://www.uspto.gov/web/offices/com/iip/data.htm#PatentProtectionLength Copyright depends on the circumstances of the creation. Works for hire get 95 years from publication or 120 years from creation, whichever is shortest. An individual or more than one author who did not create a work for hire receive a term of life + 70 years. So at an age of 26 if I create a work not for hire and live to be 100, the copyright term could be 144 years. http://www.copyright.gov/circs/circ1.html#hlc So assuming the longest possible fixed terms (120 years for copyright and 20 years for patents) a copyright term can be 6 times longer than a patent. If it's not a work for hire as most open source probably isn't, it can be even longer. I don't see how you can claim this is an infinity-minus-one vs infinity argument. Plus you entirely ignored the main point of my response. To my knowledge nowhere in the patent law does it strip a copyright holder of his copyright. Patents and copyrights are not mutually exclusive rights. They exist in parallel. You maintain your copyright on an implementation of a patented algorithm. You simply may owe royalties to the patent holder for the term of their patent. If the length of a patent hurts software innovation was not the point. Nor did I make any commentary on that. I simply pointed out an inaccuracy in your statement. While you may not agree with what I am saying, I do not agree that I am distorting things. You implied that a patent was mutually exclusive to a copyright. If that's not a distortion then I'm not sure what your definition of the word is. I am being aggressive as most of the responses have been from Alexander Terekhov at IBM who is strongly opposed to what I had to say. It is hard for me to not get an aggressive tone considering the way he replied to my messages. Calling me a Communist was classic, and I doubt many other people here would have remained any calmer having read such things said of themself. I'd note I made specific note that some of the responses you got weren't good either. This is an interesting interpretation of things as I do not see very many people disagreeing with me, or even participating in this thread. By number of messages you may be correct, but most of the responses have been from Alexander. Other people posting? Okay maybe I got the number of people posting confused. But I do think Alexander posted a number of informative links. That included rational explantions for his position. You responded back and forth with him eventually posting a series of questions of him. At the end of which you said: When answering these questions please don't just think of what IBM or its employees would privately benefit from, but from what the larger software sector(s) and economy outside of IBM would benefit from. Thereby implying that he hadn't done that already. I'd argue that his previous informative links and commentary showed in my mind that he was trying to do that. Certainly if I were him I would have been offended that because you didn't share my opinion that you decided to call my opinion self centered after the effort he went into explaining his position. I can't defend him calling you a communist. But I don't think you were exactly being fair in your treatment of him either. I have reached out to many people at IBM over the years, and each offer the same general perspective which is that in their mind that software patents are good for software creators. While I agree that software patents are good for IBM, I (obviously strongly ;-) disagree that they are good for software creators generally. I opened the discussion here in the hopes that the OSI (which I am not a member of, just a supporter) could form a position on this important issue and publish that position. Alexander is going to be quite accessible as a participant in this forum and works for IBM. He has expressed what I believe to be an honest personal belief (and not just him towing the corporate line) that having software patentable is good for software creators. I do not understand his beliefs, but he has been quite clear. Didn't say he hadn't. There is little that can be said that the entire Open Source community agrees about, so that isn't reason enough to not discuss something ;-) Not talking about a quite critical issue when there is a lack of understanding isn't going to solve things either. Alexander has expressed that he believes that software patents are good for software
Re: PCT (Patents, Copyright, Trademark) policy and Open Source
On Wed, 28 Jan 2004, Ben Reser wrote: I don't see how you can claim this is an infinity-minus-one vs infinity argument. ... If the length of a patent hurts software innovation was not the point. Nor did I make any commentary on that. I simply pointed out an inaccuracy in your statement. ... Just to clarify, I am not disagreeing with your interpretation of the law and it is how I interpret the law as well. What I was trying to say is exactly what you do not want to comment on which is that when talking about *software* creations and speed of *software* innovation that talking about 14-20 years vs 50-120 years (depending on country, when the creator died, etc) becomes a *practical* argument of infinity vs infinity-plus-one. Me authoring FLOSS software which I am not allowed to distribute until the end of the term of a patent I was unaware of when I created the software (and I have no way to innovate around) has the *effect* of not allowing me to exercise rights I would normally have in copyright such as the right to distribute my own software. It is true that I still hold copyright and will be able to exercise those rights at the end of the term of the patent, but with the speed of innovation in software this really doesn't offer me much. Having multiple rights to exclude being in parallel means that you can only distribute the work if you have somehow cleared all the exclusions. The suggestion that you can simply pay some royalty (assuming RAND of course - I shouldn't need a lawyer to author software..) ignores a lot of situations and business models that do not rely on monopoly-rent-seeking, or otherwise have no way to collect this rent. With FLOSS it doesn't matter if the royalty is a million dollars per copy or a millionth of a cent per copy, you do not have the right/ability to count copies under FLOSS license agreements so you cannot successfully negotiate a rent-seeking license agreement. The only way the copyright holder is able to distribute their software as FLOSS is if the patent holder offers a worldwide, irrevocable, royalty-free, field-of-use-unrestricted patent license. If the motivation for applying for the patent was to collect monopoly-rents then why would they offer that RF license? If the motivation for applying for the patent was to exclude competitors and simply have a monopoly, then why would they offer that RF license? If the motivation for the patent was to ensure that only a small number of large companies could exist and compete in a given market, then why would they offer that RF license? Why should my right to receive the moral and material benefits from my own software under copyright be dependent on the benevolence of a patent holder who I received nothing from? If I actually read their patent and learned something then maybe there can claim to be an exchange, but I see little evidence that people in the software industry learn from patents. In fact most software creators I know avoid looking at patents for fear of being tainted by them. Thereby implying that he hadn't done that already. I'd argue that his previous informative links and commentary showed in my mind that he was trying to do that. Did you read all the links and commentary? I did, and I disagree that he was demonstrating thinking outside of the IBM box. I understand why unlimited patentability is good for very large companies like IBM and can't argue against. I do not believe that what is good for IBM is good for the software sector of the economy as a whole. I did not see explanations of how unlimited patentability would be good for SMBs or other sectors (such as the volunteer sector, private citizens innovating in their home, etc) for which information process patents are only a liability and a chill on their creativity. Certainly if I were him I would have been offended that because you didn't share my opinion that you decided to call my opinion self centered after the effort he went into explaining his position. I don't believe he explained his position. When asking direct questions they were avoided. I put a list of many of my questions in a single message just in case they were missed and did not receive replies. My hope was to bring the conversation to the point where the reasons for each side were clear, possibly even to the point some trusted third party could tabulate the pros-and-cons of information process patents. This would allow people to look at the core areas of disagreement and decide for themselves where their priorities were and what the balance of public policy goals should be. I am being honest when I say I am baffled by the views of those who support information process patents. I am not trying to be insulting when I try to get answers, but the other side suggesting that I am somehow 'stupid' for not understanding their logic, or that I am being dishonest, or that I am a communist or some other 'ist, doesn't help the
Re: Unilateral permissions in license law.
daniel wallace scripsit: A unilateral permission can be granted only for something in which the grantor has some legal right. A grantor's unilateral permission by it's very definition can have no effect on the exclusive rights of another person distinct from the grantor. Very true. When dealing with derivative works, a unilateral permission from an authorizing author can have no effect on the newly vested copyright for the new material added by the modifying author. Fortunately, no copyleft license attempts to do this. The mechanism instead is to grant permission to *create* the derivative work only on the condition that the derivative work's author distribute the derivative work (if at all) only under the copyleft license. Failure to do so is not a breach of contract, since there is none, but it *is* copyright infringement, since the condition was not met and the derivative work was not lawfully created. Do you see the cat yet? -- John Cowan [EMAIL PROTECTED] www.ccil.org/~cowan www.reutershealth.com If I have seen farther than others, it is because I am surrounded by dwarves. --Murray Gell-Mann -- license-discuss archive is at http://crynwr.com/cgi-bin/ezmlm-cgi?3
