RE: Promotion of software patents == opposition to Open Source.

[Russell McOrmond]

Sorry I am adding more non-licensing messages only the next day.  I'm
trying to keep my messages to a minimum.  Will stop posting if an OSI
person tells me that it really is too far off topic.


In an email message I wrote to the "patents are your friend" comment:
> Patents may be IBM's and your friend, but they are the enemy of 
> Open Source software and myself.


  Alexander Terekhov then said that I have yet to present evidence of my
claim. To this I respond that Alexander has not provided any evidence to
support his pro-patent position either.


Alexander,

  I don't feel the need to defend my position as I am not posting it into
a BSA or other "software manufacturing" lobbiest forum.  I have no
interest in trying to convince this other part of the software industry of
things which I acknowledge they believe are harmful to their interests.

  You may find with the issue raised in a purely Open Source forum that
you will have to defend your position in support of software patents, not
me defending my position in opposition.


  Just to clarify, I am not sure I understand what you disagree with. Can
you clarify your beliefs on the following.

  a) That in order to make a software patent compatible with Open Source
 requirements you need to render it harmless with a RF patent license
 with no field-of-use restrictions.

  b) That software patents can be rendered harmless by the Open Source
 movement, but that beyond ways to achieve this activity there is no 
 other benefit software patents can provide to the movement.

  c) Software patents are claimed to be of benefit to "software
 manufacturing" creators, but that this is a highly controversial
 belief even with other "software manufacturing" creators.

 I happen to disagree with the position that software patents benefit
 the "software manufacturing" sector (Don't think "royalty on 
 existing patent", think "land-mine against creating new software"), 
 but you don't need to agree with this to acknowledge that the
 issue is highly controversial.

 Note: The League for Programming Freedom is not made up only of Open
 Source creators, and includes many "software manufacturing" creators
 as well. http://progfree.org/ http://swpat.ffii.org/

  d) That the Open Source movement would be better off if the legal 
 minefield of software patents was not a threat that "Software
 manufacturing" vendors could launch against their chosen way of 
 creating/distributing software.

 Two public policy (rather than patent pools which I don't believe 
 can work) solution paths are suggested: statutory limits against 
 patents on software, or fair use exemptions for Open Source software.

  e) That patent quality is a serious problem with software patents, and
 that existing tests for "useful, novel, unobvious" are not rigorous
 enough? Lets skip the "statutory" test for now given IBM's opposition
 to this test.

  f) That with the nature of software, especially with the volume created 
 through peer production methodologies, that patent quality is a
 practically (costs vs benefits) unsolvable problem.  That is my
 belief, but you don't have to agree with me to acknowledge that
 patent quality is a serious problem.

  g) That if patent quality cannot be raised such that there is general
 agreement within the sector that a vast majority (90%?) are valid, 
 that it is better to provide "not enough" protection to valid patents
 than to provide "too much" protection to invalid patents.


  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.

---
 Russell McOrmond, Internet Consultant:  
 Governance software that controls ICT, automates government policy, or
 electronically counts votes, shouldn't be bought any more than 
 politicians should be bought.  -- http://www.flora.ca/russell/

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Re: bare license

[daniel wallace]

I wish to thank you for responding to my musings. I am a retired
physicist with little to do but ponder things in my spare time.
I observed that in the SCO v. IBM travesty that IBM legal in
their counterclaims against SCO described the GPL as:
"The Linux developers' public agreement to apply GPL terms
expresses in a binding legal form the conscious public covenant
that defines the open-source community -- a covenant that SCO
itself supported as a Linux company for many years."
Are the "public covenant" and "public agreement" phrases an attempt
to overcome privity questions? The "public covenant" brings to my
mind a "public trust" under common Trust Law where there are relaxed
privity contraints.
If privity concerns were overcome, wouldn't the "new right against
the world" principle still trigger preemption under sec. 301 because
the primary elements under consideration are exclusive copyrights? 





















"binding
legal form" this implied that the GPL was not a license
permission in their opinion.
I also observed that IBM called the GPL a "public agreement"   
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RE: Promotion of software patents == opposition to Open Source.

[Alexander Terekhov]

Russell McOrmond wrote:
[...]
> Copyright law on the expression ... protects ...

Right, *expression*. And that's why patents are your friends.

http://sources.redhat.com/ml/pthreads-win32/2004/msg5.html
http://sources.redhat.com/ml/pthreads-win32/2004/msg7.html
http://sources.redhat.com/ml/pthreads-win32/2004/msg8.html

"IANALBIPOOTN", sort of.

regards,
alexander.

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