Software patents and copyrights

Karsten M. Self kmself at
Fri Nov 9 20:54:27 UTC 2001

on Fri, Nov 09, 2001 at 12:27:00PM +0100, DeBug (debug at wrote:
> KMS> Greg Aharonian has been floating this around a few lists recently.  It's
> KMS> an interesting compendium of some relevant case law and other citations.
> KMS> Greg wants to make the case that computer software should not be
> KMS> copyrighted, and that it should instead be patented.

> I have subscribed to the list hoping to talk with the people who care
> most about free software but at the moment i am disappointed.

That is not the purpose of this list.  I've suggested other venues for
such discussion.  In particular, news:gnu.misc-discuss.

> This is my last post here for a long time since now.

Thank you.

> To my mind software cannot be neither copyrighted nor patented.

What you want, and what the law allows, are very, very, very different,
disjoint, sets.  I'd suggest you familiarize yourself with the
literature concerning copyright, free software, and software copyright.

Among texts, in no particular order:

  - Title 17, United States Code:  The US Copyright statue.  This may
    not govern your particular jurisdiction, but it does govern a
    substantial portion of the relevent economic activity, and is fairly
    standardized across major economic powers.  You should compare and
    contrast with your own nation's law.  Available online at:

  - The Free Software Foundation's writings on philosophy and licenses.

  - DiBona, Ocman, & Stone, _Open Sources_, O'Reilly.  General
    discussion of various facets of free software.

  - Pamela Samuelson, various writings.  Some available online via
    Google or her website, others in law journals.  An unorthodox, but
    very thorough, and very well researched, investigation of copyright
    and its application to free software.  In particular, her paper
    "CONTU Revisited" takes a long, hard look at the application of
    copyright to software.

  - Relevant copyright caselaw.  Samuelson is a good source for much of
    this, another reason to recommend her writings.

  - Lawrence Lessig, _Code and other laws of cyberspace_, and _The
    Future of Ideas:  the fate of the commons in a connected world_,
    among other writings.  A first-class legal mind who Truly Gets It®. 

  - Mancur Olson _The Logic of Collective Action_, and _The Rise and
    Decline of Nations_.  An economist whose work discusses how and why
    oligarchical groups evolve toward political power, paradoxically,
    often to results at odds with individual goal allignments.  For a

> Here is why:
> When people have limited resources they somehow have to decide
> how to share them. The notion of property comes to the scene.
> When resources are unlimited one does not need to solve the problem
> how to share the resources. Property is secondary to the freedom to
> use. If someone tries to take control over unlimited resource it looks
> like he wants to become a master where it is absolutely unnecessary.

Here's the contradiction in your argument:  if the resource is
unlimited, nonrivalrous, and (unstated by you) immune from attempts at
control, then the notion of property is indeed inappropriate.

However, "intellectual property" (copyright, patent, trademark, and
trade secret) fail in this regard.  It's possible to maneuver legally to
control works and ideas.  To this regard, the _use_ of the applicable
property law to ensure that such attempts at exclusive control are _not_
possible, at least in some domains, is beneficial.

The key is this:  appropriate use of tools.  There are economic motives,
and more to the point, extreme structural incentives, to maintaining the
legal status quo for the forseable future.


> I have asked you several times how can i avoid controlling my software
> but it seems the only solution is to remove unjust laws - the laws
> that postulate and regulate the control of unlimited resources...

If you really enjoy tilting at windmills, be my guest, but please not on
this list.

The charter of this list implies that legal instruments (licenses,
contracts, copyright, patent, trademark) are valid means for addressing
the problems you describe, and specifically, concerns discussion of such
instruments to achieve the ends you apparently desire.  Challenging the
underlying legal landscape directly is very unlikely to achieve anything
remotely resembling what you want.  I advocate changing the incentive
structure, and/or building a constituency who benefit from a different
regime, rather than blindly wasting energies on battlements with no hope
of success.


Karsten M. Self <kmself at>
 What part of "Gestalt" don't you understand?             Home of the brave                   Land of the free
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