Response to Mr. Maturana

[Ken Brown]

A couple of things-

1) I take umbrage with law vs. law enforcement issues.  I guess its b/c as a
public policy guy I notice that laws without teeth are more ineffective and
troublesome than no law at all.  His point about "forbidding transformation"
is valid. Moreover, it speaks directly to his second point about reverse
engineering.  What if I reverse engineer a program and recode it in another
computer language?  This problem is rampant particularly because you can't
stop it and it has not been addressed in detail in courts.  --I am sure that
there are some pretty clever programmers out there that would back me up on
this.  There are just too many ways to recode a product and make it look as
though it wasn't the original.
2) Also, there is some scuttling with the second point regarding patent law.
I am not sure if I understand fully Mr Maturana's point fully here, but I
infer that he is saying that people are resorting to patents because
copyrights are so ineffective.  Once you have reverse engineered the
product, the last leg of protection you would have in a court of law is to
prove that you own the "process" or the "mechanism" to make the product work
the way it does under patent law.

While there are differences between copyrights and patents, the purpose of
both is protection of your IP.  And again, if the law is impotent in its
enforceability and evidentiary standards, there is a very serious problem
with the status quo. .

kb




-----Original Message-----
From: John Cowan [mailto:jcowan at reutershealth.com]
Sent: Sunday, March 17, 2002 1:43 AM
To: I.R.Maturana
Cc: 'John Cowan'; 'Russell Nelson'; brian at collab.net;
license-discuss at opensource.org; rms at gnu.org; moglen at columbia.edu
Subject: Re: OSD modification regarding what license can require of user

I.R.Maturana scripsit:

> When using the expression "derivative work" you are including
> publication/distribution: That is: you read my phrase as if I was
> describing a "published-distributed-derivative" work".

No, I understand you correctly, but you are simply in error.
The U.S. copyright law speaks of "preparing" derivative works
as a right reserved to the author.  It does not speak of
"distributing" or "publishing" them.

> While the transformed work is not made publicly available,
> an author cannot forbid transformation. This would be an absurd.

Absurd or not, it is the law.

> For this same reason, he cannot forbid the _translation_ of his
> work. (Can you believe seriously that States will adhere to a
> Convention that allows authors to forbid translation of works ?

I do seriously believe it; in fact, I know it is so.

> BTW, the actual attempt to adopt Software patents arise because
> companies have discovered that they were unable to forbid
> the reverse engineering. They cannot sue anybody for this.

Patents are not copyrights; the rules are entirely different.
In particular, there is AFAIK no international patent law at all.

> I suppose you are a lawyer. I am only studying these laws since 1998.

I am not a lawyer.

--
John Cowan <jcowan at reutershealth.com>     http://www.reutershealth.com
I amar prestar aen, han mathon ne nen,    http://www.ccil.org/~cowan
han mathon ne chae, a han noston ne 'wilith.  --Galadriel, _LOTR:FOTR_
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