PCT (Patents, Copyright, Trademark) policy and Open Source

[Russell McOrmond]

(Old title removed since it was provocative)

On Mon, 19 Jan 2004, Ben Reser wrote:

> On Mon, Jan 19, 2004 at 01:30:14PM -0500, Russell McOrmond wrote:
> > (1) Software patents and interface copyrights are used to revoke creators
> > rights (copyright holder need not be aware of a patent in order to have
> > information process patent infringement claims revoke their copyright - a
> > real form of "copyright theft") and traditional property rights (owners of
> > ICT licensed to be under the control of some third party, part of the DMCA
> > problem).
> 
> I seriously doubt this is true.  You may feel that the effect of the
> patent right revokes a copyright.  But I doubt that is reflected in the
> law.  Considering that a patent is for a significantly shorter term than
> a copyright you may just be temporarily impaired from making use of your
> work.

  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.

> If patents are good or not is really not clear to me.

  I am not suggesting that all patents of any subject matter are bad, but
that "information process" patents (Software, business models, etc) are
bad.

  I am not anti-patent any more than I am anti-copyright.  I am just a
public policy consultant that has noticed that as these areas of law are
expanded into new subject matter that the economic analysis and
consequences of the laws can sometimes be reversed.

  These areas of public policy are extremely dependent on independent
economic analysis of each class of subject matter.  What is true for
manufacturing processes to create hardware, or the very different dynamics
of a composition of matter in a pharmaceutical, is not automatically true
of other subject matter.

  I believe that the very recent expansion by patent offices of patent
policy into information processes, sometimes violating the letter and
intent of patent legislation itself, is based on the false notion that all
subject matter is equivalent.

  Last Friday I was invited by ICT Branch of Industry Canada to a talk
hosted by the Industrial Analysis Center (also Industry Canada) on patents
(Specifically "Preliminary Injunctions and Damages in Patent Suits").  I
was invited specifically because of my call for subject-matter based
economic analysis of PCT policy, and the hopes from representatives at ICT
branch that the Industrial Analysis Center could be convinced to do this
analysis.

> I think it really depends on the circumstance.  But I don't think it's
> very useful to your argument to distort things.

  While you may not agree with what I am saying, I do not agree that I am
distorting things.

  Looking at existing software patent licenses isn't going to be helpful
to answering whether a given subject matter should or should not have
patent policy applied to it.  As Alex pointed out there are "Open Source"
and even copyleft-style patent licenses, but the existence of this
licensing does not really change whether or not patents in software are
harmful to software creators.

> I particularly think your condescending tone is unsuited to this list
> and your argument.  It is very likely influencing the responses you're
> getting.

  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.

> As more people have replied to you disagreeing with you you've
> gradually increased this tone.  That's not to justify any of the
> responses you've gotten.  Some of them are downright bad themselves.

  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?

  Ken Brown sent a confusing message about "IP", where there is a lot of
room for misinterpretation when using that phrase.  You can't really learn
about what someone's feelings are with that phrase.

  I am opposed to software patents and interface copyright *because* I am
supportive of protecting creators rights in software copyright.

  The same thing is true of the SCO debate.  SCO claims they are just
protecting their "IP", while trying to do things (monopoly-rent-seeking
against Open Source licensed software) which would constitute the
infringement of the copyright of hundreds of other copyright holders.

  Is SCO pro-IP or anti-IP?  Can anything sensible really be said in a
sentence with the phrase "Intellectual Property" in it?


  Brian Behlendorf replied to the confusing message about "IP",
referencing SCO's cool-aid.  Having met Brian in the past I suspect his
views are similar to Bruce Perens on this, although he may correct me.

Note: I met Brian when I invited him to meet a Canadian Member of
Parliament , Reg Alcock, who is currently the President of the Treasury
Board.

GOSLING 1-year anniversary
http://weblog.flora.ca/article.php3?story_id=402

Notes about Reg Alcock and Open Source
http://www.canopener.ca/pipermail/discuss/2003-December/001297.html

Opinion from Bruce about software patents
http://xml.coverpages.org/xmlPapers200401.html#PerensSCO
   "Open source advocate Bruce Perens tells BBC technology correspondent 
    Clark Boyd why the real threat to Linux and the open source movement 
    is not from the SCO lawsuits, but from software patents."

> However, perhaps the more effective thing to do here is reach out to IBM
> and ask them why they're behaving this way.  I don't think anyone on
> this list can really answer that question for you.

  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.

> I think it's clear that some people in the Open Source community do not
> have the same feelings as you do about patents.  Continuing this thread
> isn't likely to change that or get your question answered.

  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 creators, and specifically good for Open Source.  While I may
not be the best person on the other side of the debate as I cannot
understand Alexander's viewpoint, another Open Source advocate that has
spent time on the software patent file should jump in.

  There are various Open Source conferences that happen almost every
month.  I believe it is critical for the Open Source movement to have some
open debates on software patents and get this issue resolved.

  We could have an "Alexander Terekhov vs Bruce Perens" debate, or some
other pairing of people who feel they are part of this community but are
on polar-opposites of the belief of whether software patents are good for
the community.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/> 
 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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