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Software Patents vs. Free Software
Bruce Perens writes: "Did you think you knew what I am doing about software patents from the news coverage? You're probably wrong. Get the real scoop here. There's been enough distortion that I took the time to put down my own opinions, and an explanation of the summit meeting I'm calling on Free Software and The Law. Thanks! - Bruce" You might need to read our previous story about Perens' patent activities for background.
Personally I don't completely buy Peren's statement that the net effect of patents held by large companies just cancel each other out. They may happen to cancel each other out, but they also prevent new smaller companies from joining the "big boys", which clearly is also in their benefit. However I do feel, perhaps contraversially, that software patents should exist. What I disagree with is the standard length of patent - it's simply too long for such a fast moving field. (The same applies to many fields, such as genetics.) With a short-term patent, say 3 years at most, people would be able to protect their design (and investment) from others for a short period allowing them to bring to the market a new product. If they fail in that aim then other people should be allowed to take up the challenge, instead of the patent languishing for years to come preventing further work. If we abolish patents completely then many ideas will simply become secret technology; no published articles from commercial orgs. It may also reduce the amount of R&D done in such places, which would be a bad thing.
Ironic to see that one country controls the fundamentals of an invention that wasn't created in that country. Why should the United States have exclusive rights to determine what should and what should not be patented. Example would be the Swede who invented the mouse and never got his patent, nor credit for the invention. Why should he be cheated by a system which cannot govern themselves in a morally ethical fashion, that extends to everyone, free from biases such as the parties bank roll.
Maybe a consortium of international scientists, and engineers should be chosen via methods of voting to serve on an international commitee to promote fair uses of patents in non biased fashions, as opposed to having one central form of governance which does a crappy job allowing monopolizations.
Take notice "securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" now in theory I take this in context to mean that no software in the world should be patented since it took the works of other patented (pre-existing works other than the Author's own) items to create. How does the agency determine that "X Product" from X Foo Company is the genuine inventor of the product without using something that was hidden under the dusty shelves at the patent office.
Is it me seeing this in a different perspective entirely or is this more or less the same arguments coming out of Peren's write up.
What should be done is the loser of the case should have to foot both the lawsuit fees, and legal fees to bring the trial to light. Court cases sure are expensive, and its unfair to both thos plaintiff and defendant to dish out monies for it. Remember a defendant is guilty until proven innocent, and in most cases it would be Davy being sued by Goliath, so since the burden of proof would lay on Goliath's shoulders, they should be the ones to foot the bill for the legal case until the matter is resolved. Afterwards should Davy lose, well then the legal fees would be paid along with whatever else.
Just my two cents on it all.
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I am not a big fan of requesting things from companies for using open source. Mainly because it seems to set a double standard. Joe user is allowed to use the software free of charge, but once the company uses the software, be it for there own use or in a product they are selling, they have to pay with patents or what not for it? Granted, they should pay for it, but forcing them to do it isn't the best way to go about it. For example, IBM is pushing Linux and paying for it by donating hardware and buying ad space and pushing the idea of free software. Let the company do what they will with the software, as long as they don't violate the license.
In time the company will donate back to the open source world, be it with advertising, hardware, or code, once there business model is based around open source software it is in there best interest to help it along. IBM is going to want to advertise the software they use. And they are going to want to hire programmers to help the project along.
First off we are NOT tying our software into treaties and contracts. How can any one person sell open-source. Open-source is bigger that individuals. Think of it as a big organism and we are the individual cells that make up that organism. Can you or me decide where that organism goes? No. Open-source is a community and will respond only to communal wants and needs.
Now listen to this very carefully... the open-source community has no money. In the next couple of decades things are going to get very very hot in the courts and specific individuals in our community are going to need protection. If a company stole my software, patented it and then threatened me for patent infringment, would YOU give me the money I need to protect myself? In fact would any of you reading this give me the money?
So far our strength lies in numbers (and average IQ) but there will come a time when we need the clout that comes from a community joined. The best way to accomplish this at this moment in time is to tentatively ally with select companies. We've got nothing too lose. How is a company going to take anything from us? We give it away freely anyway.
Pinky: "What are we going to do tomorrow night Brain?"
Pinky: "What are we going to do tomorrow night Brain?"
Brain: "I would tell you Pinky but this 120 char limi
People like the above poster and Bruce Perens make me wonder exactly where the notion of an Open Source Community and the concept of "we" comes up in this discussion. Bruce Perens does not represent the Linux kernel hackers, the Apache Foundation, the *BSD coders nor even the people that hack Slashcode. So on exactly whose behalf is he signing treaties with and who will enforce his end of the bargain?
I've previously told Bruce on kuro5hin that companies have no incentive to give up their IP and in fact will probably lose out on the deal (OpenSSH vs. SSH is a good example) and I'm yet to see a good counter argument for that. Also the fact that he has nothing to back up his threats to them with is also not encouraging. Here's an excerpt my reply to his post on K5 about that.
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The five arguments Bruce puts forward are weak. If he wants to make progress, he will need something stronger. Here are some counter arguments; those who wish to help Bruce may want to find arguments that defeat them. (Note that denial or ranting is not going to give him anything he can take into the meeting.)
constitutionally unjustified: this may be something that you could use in the US legal or political systems, but why should it influence multinational companies? It is not their business to interpret or enforce the US constitution, they just operate within the law as interpreted in the courts.
isn't the computer, not its software, the thing that should have been patented? Why is it wrong to be able to protect a new idea implemented as a pattern of digits, but right to be able to protect a new idea implemented as a pattern of metal or plastic? It is the new idea that is being patented, the preferred embodiment being in software is not the real issue. This is where all the generalised argument against an ill-defined concept of "software patent" will be easiest to take apart.
The 20-year term it may be true that the particular embodiment will be obsolete, but the idea could well still be very valuable. If the idea is not valuable then the patent does not matter because nobody is using the idea, and the holder is paying the patent fees for no benefit. If people still want to use the idea in a new implementation, then it is still valuable and clearly not obsolete.
The monopoly ... anti-trust laws this is much like the constitution issue, this is a matter for the political and legal system, why should the companies be doing anything themselves?
U.S.A. Tax if other countries change their patent laws, then US companies will have to start paying holders of patents in those other countries if they want to use the ideas there. Making the patent law the same everywhere could just as easily reduce the dominance of US-based patent holders.
Remember that "hundreds of anonymous people don't like it" is not much of an argument to take into a meeting with companies that are making a lot of money out of their patent portfolios. Don't just say you think patents are evil, think of some better arguments than the ones Bruce started with.