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Freedom of Speech in Software
akpoff writes " I've been struggling with the question 'what's wrong with software patents' but haven't been able to find the right words. I was over at John Gilmore's website and found a link to John Salin's 'Freedom of Speech in Software' letter to the USPTO back in 1991! This is one of the best explanations I've seen. He reminds us that computer programs are essentially like literature or music -- they are expressions of ideas. Just because they run on a computer doesn't make them uniquely different from other creative mediums. We should think player piano (patentable) vs the music (copyrightable but not patentable) it plays. Europeans -- put this letter into the hands of your MEPs!"
what a refreshingly elegant way of getting the point accros (piano vs music)! I have this very minute emailed the article to my MEP!
... do we really want to encourage a bunch of code that is a blatant rip-off of existing ideas, just re-implemented? Perhaps a balance needs to be sought in short-lived patents. That was the original concept, IIRC... except the crusty old lawmakers who came up with it didn't realize how the rate of change in technology and ideas would increase.
perl -e 'print $i=pack(c5, (41*2), sqrt(7056), (unpack(c,H)-2), oct(115), 10)'
You can copyright a song.. but can you copyright the ideas behind how you made that song... I mean it's your idea etc but the basics of music aren't copyrightable. So why should we give people the right to own the ideas behind making software.
It's what's wrong with patents in general. Quite simply: There are natural rights, and there are granted rights. Your natural rights include such things as freedom of speech, freedom of the press, freedom of travel, right to property, and so on.
The natural rights are things that can be released to some extent by a person, but cannot be taken away. Therefore, as a government attempts to take these rights away, it drives anarchy, crime, and disorder, eventually resulting in the fall of the government.
Your granted rights include such things as welfare, right to a single national language (nationalism), right not to compete against foreign labor, right to a monopoly, (as in Spain) right to tax funds for your family title and property, and so on. Patents and copyrights fall into the latter class. They are granted rights.
The granted rights are those things that make it easier to live, especially when people are not good to each other on their own. You break your leg, and didn't have insurance, and can't work, and haven't been paid justly for your labor in the past, so you have no assets? Well, we will make others pay for you.
The problem is that every granted right that is given to one person requires the government to attempt to deprive another person of their natural rights. So the more granted rights you have, the more unstable your government is. A sign of this is that your economy will be bad, the unofficial (criminal) economy will be larger, and violent crime will be greater, as well.
Where your balance point between natural and granted rights is, is a balance that is forced by people not dealing with each other rightly. But there is another factor, as well: when those with power just want benefits, and have the ability to take them by controlling the law. When this happens, though, the government is not going to last long.
Unfortunately, I'm seeing this happen in the EU, so I don't expect the union to last. But if I am correct, it also means that no argument you use will work. So by all means, try your own. But if you want, present this to them as well. Maybe it'll wake someone up, but I doubt it.
Correct Horse Battery Staple: 72 bits of entropy. Enter "Correct H" into google. When it generates the phrase, that's
The real problem with software patents is that the field is too young to support them. It's as though people were able to take out patents on "the wheel" and "fire". The patent office has completely abdicated its responsibilities as well and allows too many patents that are obvious to any competent practitioner. Ideas no longer have to be reduced to practice (i.e. implemented) which allows for a vast number of frivolous patents to be filed for.
It's unlikely that we'll be able to get rid of software patents entirely, but perhaps some changes could be made that would make the world better for us all. A peer review panel to reject obvious patents would be a good start along with some changes outlawing overly broad patents.
Because, in the software industry the history has shown (especially via Microsoft) the first winner takes it all, leaving that winner with disproportionate advantages versus any competing idea.
This article suggests that free speech might not be the prime issue from a MEP's point of view.
http://erichsieht.wordpress.com/category/english/
Although I would really prefer to not have software patents, I don't think that the case against them is so clear cut. There are many terrible software patents--vague, obvious, trivial, overly broad, and so on. But there are also software patents that are specific, novel, useful, innovative, implementable. And it is possible that software patents benefit us in a couple of ways.
First, companies are encouraged to publish details of their inventions that otherwise would have been held as trade secrets. In the database management world, most of the innovations have been made in industry, and before software was patentable most details were kept secret. For example, David Lomet tells me that Tandem held as secret the "repeating history" recovery scheme that was later re-invented by Mohan and published as part of IBM's ARIES system (parts of which were patented.). See ARIES for details of that system and links to good patents.
If it weren't for software patents, it's doubtful that IBM would have published such details.
Lomet himself has a couple of dozen patents. Of the ones I've looked at, they are all high quality patents. On the question of patents encouraging innovation, he says:
I'm not sure that this effect is as significant, and the ill effects of all the low-quality software patents may outweigh the benefits, but I think it's important to admit that there are some good effects.
Just because code is text and literature is text doesn't make the two equivalent. Using this code is art principal, you could take a piece of hardware and take the mechanical drawings used in the design of the hardware and declare those to be art and whine about those patents too.
I'll agree that software patents are freaking stupid but come up with a better argument than code is a form of art. I don't know who the hell came up with this concept but I've heard it long before all the ad agency artsy folks broke into the "software business" when they got their first copy of Dreamweaver or Hotmetal.
'Same speed C but faster'
Talk about things like the Amazon one-click patent, I'm sure a quick search here will turn up plenty of examples of absurd patents.
THOSE are the kind of arguments politicians understand.
Tech Public Policy stuff
Just because a system is abused, that doesn't make it a bad idea. The original concept of patents was a good idea, and it just needs a major overhaul.
And just for the record, I think software patents are one of those abuses of the system.
"Ask not what your country can do for you." --John F. Kennedy
Hmmz.. i do want to say something to our representatives.. but how? and who is it? pfffrrrttt..
http://www.virtualconcepts.nl/
"if a program is compiled, it's no longer writing"
Even compiled it is still writing. I can't read German and make any sense of it. Does that mean it is not writing? Comprehension is not required for something to be considered writing.
"So isn't this whole "software patents" thing actually good for OSS, in that it will only make it harder to distribute proprietary software in its compiled form?"
Perhaps if that was all that software patents were being applied to, then one could make an argument that it is positive for OSS. I wouldn't agree with said argument, but that really doesn't matter. The problem lies in software patents being extended to cover the ideas behind software. Patenting things like "a process to do X" is a bad idea because it squelches competition, and in some cases, prevents a product that actually implements the idea from ever being produced thanks to firms that collect patents with no intention of implementing them.
- b
What needs to be changed:
- The length of software patents needs to be severely reduced, perhaps to 7 years or so. The IT industry moves too quickly.
- Patents should not be granted for overly broad or trivial ideas. I would say pretty well all software patents are trivial.
- The patent office has no incentive to reject patents. They should be held liable, and penalised, for incorrectly granted patents.
- Patents should be open to the public for peer review, since clearly the patent office is not capable of distinguishing an ingenious idea from a trivial one.
Article 5 of the proposal says:
and this is explained on page 15: And on the bottom of page 7, it says The way I interpret this is that "free speech" objections to the proposal are effectively countered. The proposal denies patents on algorithms and on software 'as such'.In other words, your rights to write and publish software are not affected (free speech), but you are not allowed to run any software that allegedly contains patented technology, without paying for a license!
I think the only useful (and powerful) objections to the directive are economic ones. Patents as allowed by this directive stifle innovation rather than promoting it, and can easily be abused for anti-competitive purposes. The directive allows over-broad patents that pose a risk to the software industry (although the "explanatory memorandum" sounds very reasonable, the actual articles of the directive provide hardly any limitation to the scope of software patents or guarantees that they are not too easily granted).
For example, the broader version of the "Amazon one-click patent" that was recently granted by the EPO, would be allowed by this directive.
In the long run, the negative effect on innovation would not even benefit the big software companies (who initially may profit from software patents as anti-competitive tools). It will only be profitable to a small group of patent lawyers (at the EPO) and a number of patent sharks, at the cost of the European citizen.
Read the proposed directive for yourself and shudder:
Nothing wrong with making money of an invention. If it is an invention, that is. I believe it to be quite rare to come up with something entirely New and of Inventive Nature.
I know a programmer. He's good. I believe that he can program anything you throw at him. I believe that there are many more programmers who can do that. So, where is the invention if all is required is the skill of a good programmer? They all could easily run the risk of infringing just by applying their usual trade.
Another thing to consider: Patents last 20 years. That is a long time for software. Special arrangments have been made to allow drugs a somewhat longer protection. If there are software patents, they should be shorter, 10 years max. at best.
I'm a (Dutch) patent attorney. I will never write a software patent (and never have). I believe that software patents should be possible, for example if you come up with an algorithm that allows video to be broadcasted requiring only half the bandwidth. However, I have sincere fear that the system will not be able to come up with rules that do justice to real inventors and to society, which should not be hampered by patents that are granted too easily and subsequently overstretched in court. Even on more straightforward matters (such as mechanics) the USPTO is certainly not what it should be, and unfortunately the EPO is slowly deteriorating towards the USPTO level. In addition, it is extremely hard to determine what the state of the art is (how are you going to search?), so patents will be granted while they shouldn't have been. In patent law, the onus is on the person accused of infringment. Not a good thing if it is nearly impossible for you too to determine what was already there.
OK, the "programs are writing" makes complete sense, and I woud think that when distributing source only, the only worry would be infringing on copyrights, but if a program is compiled, it's no longer writing.
I can write a piece of music with a pencil, using standard musical notation. I can also punch holes on a roll of special paper in exact positions so that a player piano (a machine) can then reproduce the music as I intended. The process of doing this may be patented. The melody I write is copyrighted. Does my translation from human-readable to machine-readable media somehow change the nature of what the music is? Why should my song be patentable just because it's on a player piano roll?
If another person came up with the same tune that I did, but can demonstrate that they did so independently, they are not guilty of infringing my copyright, because they didn't copy from me. If each of us makes a piano roll of our respective songs, this is still true. Why should I be able to patent the piano roll of my song, but not what I wrote with a pencil?
$x='S24;r)>63/* h@<5+oZ)32"5cz';$me='phroggy'x$];
$x=~y+ -xz+\0-Tx+;print$_^chop$me for split'',$x;
There, of course, is no reason that you shouldn't be allowed to make money of your invention. The real problem is the anti-competitive nature of the software patent. IBM holds a patent on a "list of words connected to business objects" which is basically every application including Excel, Word's "Font"-list or your browser's location bar.
Adobe has a patent on "floating palettes" for their toolbars. Macromedia has a patent on tabs.
If there was a consensus on how these patents would be handled, I could imagine a software patent law so inventions like RSA can be protected, but the way it is now, we make big software companies follow the RIAA's footsteps.
Imagine your a shareware developer and have a new and cool application. You make money of it, but suddenly Adobe can't sell its special Photoshop filter package anymore, because you do everything for $39.99. Suddenly, Adobe comes along and sues you, because they have a patent on buttons with grey borders. Even if they don't win, you're so broke you can't afford bread.
Imagine your a independant developer. You have a great new encryption algorithm and patent it. So you obiously have to publish it. It gets scrutinized by the cryptographic community and is found secure and ultra-fast. IBM implements it as part of its new java-crypto-webservice-thingy. You sue, because the patent grants you the right to license payments. Thing is... you have to sue in Denmark, France, Germany, the Netherlands, Belgium, the UK, Luxenburg, the Swiss, Spain... you get the idea. IBM eventually settles to patent your idea in the US. Suddenly you're so broke, you can't afford bread.
Anyone remember the american inventor of the "Sony" walkman? No? well, I thought so. He's so broke he can't afford bread. Sony's still making billions of his patent, which he couldn't enforce.
This system is so broken, there is no way you can fix it gradually. We're better off without allowing software patents for the moment. Really.
But the biggest joke hasn't been mentioned yet. The initiative comes from the UK and might work with the UK's laws. In Germany, if you are the managing director of a company with limited liability (AG or GmbH), you're not allowed to knowingly engage in any illegal activity. If you do so, you loose the protection of the law and therefor can be hold liable with everything you own. The problem: knowingly infringing on a patent is illegal in Germany. Therefor, if IBM sends me a cease and desist letter, claiming that I MIGHT infringe on one of their 3600 patents from last year, I must immediatly stop selling all potentially infringing products. If I don't do that, I might loose all my private belongings to satisfy IBM's damage claims... even though I have a registered company with "limited liability"...talk about anti-competitive.
The author states, "Computer Programs are Writings." He compares computer programs to written essays. I believe that both his statement and comparision are generally incorrect.
Yes, there may some cases where this is so, such as might be entries in the "obfuscated C code contest". But this is very seldom what we are speaking of when we talk about "computer programs".
More so than it is similar to an essay, the computer program is similar to the collection of specific gears, sprockets, pins, and their particular arrangements which cause a machine to work in a useful and well-defined way. These parts, similarly, like components of computer programs, have yet more primitive components and specifications which provide for those at the higher level.
Perhaps a more useful example due to its comparative complexity is a clock.
That the analogy of gears, pins, sprokets and their arrangement, to software and the computer on which it runs, is successful, is illustrated by the case of the swapped watch internals.
Suppose that we have an existing mechanical clock. Now, suppose we take a duplicate watch casing, but inside we insert a "general purpose gear, ping, and sproket emulator". Like the computer, this device, in order to function in a useful manner, requires a set of instructions. Specifically, these instructions must instruct the emulator how to perform operations with equivalent results to those that were in our existing clock performed by real, rather than emulated gears, pins, and sprokets.
The success of the clockmaker is determined not by creativity in ordering or commentary on the natural world. Rather, success is measured by efficiency, and correctness. Optimality is measured (when it is computationally possible) by precise mathematical metrics. Correctness is determined not by asthetic appeal, creativity, or insight, but by nothing more than the solution being provably correct through the employment of established mathematical techniques. In fact, we might wonder what "correctness" should mean, if anything at all, in the context of an essay.
In the case of the computer program, creatvity or imagination are desirable not in the structure, choice, or ordering of the instructions, but rather in coming upon a correct solution or in visualizing the problem.
A source listing's utility is perhaps directly proportional to its lack of creativity.
.sig Realistic fines for copyright in
Since software is rapidly becoming a material that can implement devices previously possible only in hardware. Consider a GSM for instance.
The problem with treating software as a creative work inherently different from material works is that this argument is quickly defeated, and indeed this is the basis for allowing software patents, for "devices implemented as software", as the EPTO put it once to me when I asked about it.
The real issue is not about differences between software and other materials such as metal and plastic. The real issue is about the basic concept of granting patents on inventions. There are domains where "invention" is a laborious and costly process and where a patent is the only protection that makes it worthwhile to proceed. Medicines is one such domain. But there are other domains where invention is a trivial and fundamental aspect of the work, and where protection is not just unnecessary, but counter-productive, and software sits at this extreme.
Most other domains, such as engineering, sit somewhere in the middle, and patents can be useful or harmful depending on the context.
Making software is not inherently different from any other form of invention, it is the scale and purpose which is different. Comparing software and music is interesting, but it looks to me as if music is simply the same process of invention, take one step further along the artistic line.
In other words: not only is this argument not going to work with legislators, but it may well set the grounds for future extension of patents into domains previously considered pure "art".
The only viable arguments against software patents must be based on solid economic calculations: all patents act against small innovators, concentrate power in the hands of monopolists, and software patents in particular are a serious and possible fatal impediment to the natural and beneficial development of a software industry.
Patents are instruments created by governments to allow their business buddies to monopolise interesting areas of business. Today, any argument against patents, software or not, has to be stated in terms of "benefit to the government", not philosophical arguments about pianos and music. Legislators don't give a rats ass about music.
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> but if a program is compiled, it's no longer writing
This is a confusion of what a compiled program is. A compiled program is also code--machine code--and hence a valid form of speech, even though only intended for a computer. There is no reason not to believe that the compiled program could have (not as easily) also been produced by a person--it certainly can be read by a trained individual.
Compilers translate one form of expression into another. The letter expressly indicates the difficulty that patent claims make in light of machine generated software (amongst other things).
Your granted rights include such things as welfare...
So you are saying that because European governments tend to tax higher in order to support a richer welfare system that EU countries will also suffer more violent crime?
This is the strangest anti-state argument I've heard in a long time, and I'm really unsure what it has to do with patents.
If anything, the European-style welfare systems achieve something quite extraordinary: a society in which the poor and the weak always find support, and a society in which spare time is valued over simple wealth, demonstrated by the long holidays most Europeans enjoy.
Violent crime has its origins in things very different from high taxes (again, this linkage boggles my mind, the high-tax countries in Europe are generally the most calm, think Scandinavia and Belgium). Violent crime comes from organised criminal gangs who operate where the state is weakest. This happens when the state fails (in places like Albania) or when the state loses control over large segments of the population (in drug-ridden inner cities). A strong state is almost always a good cure for violent crime, but so is the avoidance of criminalising anti-drug legislation.
You want violent crime? Look at the USA in ten years' time, when almost 1 in 11 men will have been imprisoned at one time or another, and 1 in 3 black Americans will have a criminal record. Somehow, taxes and patents are not behind this. Bizarrely punitive lawmakers and courts, yes.
The EU is a nice place to live and work, and the union will last for much longer than people like you expect.
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It would be _so_ much better if software was patented. Patents still expire in reasonably short amounts of time, and you could ensure that any software patent had to come with source. Then, after 14 years or so, you have gobs of open source software, as opposed to nearly a century (95 years as current US copyright goes).
Just a thought.
I demand a million helicopters and a DOLLAR!
Use poetic aliterative variable names which connotate the emotion behind the variable rather than stark descriptive variable names which denotate the purpose of the variable.
Use a pretty turn of algorithm rather than a boring direct approach.
Write additional haiku, odes, sonets, etc. in the comments rather than describe your intentions in writing a particular step in the code.
Big Brother Bush is doubleplus ungood.
if a program is compiled, it's no longer writing.
You clearly aren't a programmer. I have written code directly in "compiled" (numeric) form.
I'll certainly admit it isn't the easiest form to read and write it, but there is no question that it is readable and writable. There is no real division between source and "compiled". They are merely different translations of the same thing. And there is no need to compile it at all. Absolutely any language can be run in interperted mode. The source code and executable code are identical. Compiling just helps it run faster.
You think a compiled program becomes a "tool", and as such it it's ok to put all sorts of restrictions on it restricted. This is the exact same error the authors of the DMCA made. They claim they are outlawing "piracy tools". But consider this: The DMCA makes it a crime to descramble encryption, no matter how you do it. But you don't need a computer to descramble something. You can "run" a program (tool) in your brain just by thinking through each step Your brain is the computer and a sequence of thoughts is the program (tool). It may be slow and laborous, but absolutely any program a computer can run can be run by pure thought. So by sitting motionless and just thinking certain thoughts you can descramble a DRM encrypted book to read it and commit a felony!
The DMCA says you can go to federal prison for ten years for sitting motionless and thinking certain prohibited thoughts.
Non-programmers seem to thing that computers and software are myterious and magical. They aren't. Software is just a peice of writing, a sequence of steps just like a recipe for baking a cake...
Step 1)Soften butter, and mix with 1 c sugar (leave behind 1/2 c to mix with egg whites).
Step 2)Sift flour, baking powder, and salt, together twice, then add to butter/sugar.
Step 3)add milk to the mix.
Step 4)stir until uniform.
Step 5)whip the egg whites (if you dont have a wisk try a fork, but it takes longer), and slowly add the remaining 1/2 c sugar (what you now have is called a meringue).
Step 6)add meringue and vanilla to batter, and mix again.
Step 7)bake in two 8 or 9 inch round cookie pans which have been greased and flowered. bake at 350F for 35 minutes.
That's all software is. Compiled software is the exact same thing, it's just written in a way that is easier for a computer to understand.
The only thing special about computers is that they are able to follow the instructions really really fast and bake 1000 cakes a minute. A person can always follow the recipe themselves and bake a cake.
Recipies get copyrights, not patents. Does it really make sense to grant a patent on the idea of any sort of Flambe? Even worse they are granting patents on the idea of seperating an egg yolk from the egg white.
A program is no more a "tool" than a recipie is.
Yeah, a computer is a tool that lets you use a program really fast, and a commercial baking plant is a tool that can run a recipe real fast pumping out thousands of cakes. Computers and bakery plants are tools. Software and recipies are just written instructions.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
1.Applicants must show a working example of their patent that implements all the claims contained in the patent. If they dont, they dont get the patent. (this would probobly get rid of some of the shonky patents)
2.The patent office should do better searches for prior art and if things are found that should have been found by the applicant, the applicant must pay the patent office money (to discorage the filing of "obvious" patents and so on)
3.If you dont enforce your patent, you risk loosing it (i.e. it would be similar to what happens with trademarks now). This would actually be good since it would prevent things like what happened in the Unisys LZW case.
4.Once a patent has been submitted, it cant be changed. Also, the patent must be published publicly as soon as it is submitted. (as a Pending Patent or something) Also, the date a patent expires goes from when the patent was submitted not when it was granted. (this would prevent e.g. patents that are submitted then modified then modified again then delayed and so on in an attempt to make the patent last longer)
and 5.You cant patent a formula or algortihim (genetic, biological, chemical or mathematical).
This would mean that patenting individual genes or whole organisims would be illegal. As would patenting software algortihims like encryption, compression and so on. An example here might be a test for breast cancer that looks for a breast cancer gene. You can claim a patent over your specific way of finding that one gene from all the others (assuming that there is no prior art of course) but you cant patent the gene itself or patent "testing for breast canser by finding this gene".
In the US it was never iopenly discussed in parliament, it was done within the not democratic controlled US patent system.
P atents
/index.html for a protest page alarming even more people.
AEL has collected even more useful material
http://wiki.ael.be/index.php/FightingSW
and there is a nice Letter of Tord Jansson
We have so many statements, and arguments. The EU conducted so many studies...
It is not a lack of intellect or arguments but a lack of power.
http://www.bustpatents.org
The movement for world-wide software patents is coming to a new high we are now 10 days ahead of the time when the european parliament is about to follow the US into patentability of software, business methods and it's not even clear to them because the words used have been very much stretched into endless terms of patentability(e.g. "technical")
If the EU adopts software patents, they will become global enforceable. That's when the real problem will begin.
Please help us to spread the word to attract people to a street performance on August 27th in Brussels(Old Europe). We also hope that webmasters against software patents can replace their
What if your child asks you one day: Where have you been when they
introduced software patents?
Engineers in other fields have had to deal with this issue for two centuries. Get over it. The same argument could be made for the developers of player pianos, which the author says *should* be patentable. If he wanted to argue against all patents, this would be a valid argument, but that's not what he's saying.
There are other problems as well with this "software is free speech" approach. Source code is text - so what? Circuits expressed as VHDL are text too, so are plans for any mechanical device. Since all of these are just text and pictures, why single out software?
It's the idea for which the software is an embodiment that is patented. If you try to copy the idea, even by writing your own software, you would be guilty of patent infringement.
More formally, the thing that is patented is the device a computer becomes when running a given piece of software. For example, if, back in the day, the guys who wrote VisiCalc had patented the idea for doing electronic spreadsheets, what they would have patented would have been the electronic spreadsheet machine that the computer would have become by running VisiCalc. The fact that the idea used a computer and software as part of its embodiment is irrelevant.
Putting software together in just the right way to transform a computer into a novel invention is patentable just like putting gears, wheels, iron plating, etc., together in just the right way to transform a bunch of metal into a steam engine is patentable.
The complaint against "software patents" and the USPTO has to do with the "novelty" and "non-obvious" tests for patent worthiness and calls into question the USPTO's ability to make good desicions regarding software-embodied inventions only and does not mean that software patents as a whole are bad.
If you reply, do so only to what I explicitly wrote. If I didn't write it, don't assume or infer it.
I believe your basic premises are inaccurate in several ways. Firstly, your definitions of "granted" and "natural" rights. This is a highly subjective viewpoint: looking at cultures across time and space it's more realistic to say that the very notion of a "right" is a granted thing. "Natural rights" sound nice but simply don't exist, unless you count the right to suffer and die, which is a bit brutal.
Secondly, more fundamentally, your assertion that the balance between "natural" and "granted" rights somehow implies a conflict between groups and governments. The conflicts are there, yes, and they are important, but they come from other much simpler reasons. What you eat, I can't. What you burn, I can't. What you take, I can't. Thus conflict is the simplest way of increasing one's well-being. But it's not the only one, and all human cultures survive by implementing sophisticated conflict avoidance mechanisms, between people and between groups. Trade is one of these. Social welfare another. Armies of poor people make fodder for wars, as Europe has discovered many times.
The rest of your argument is based on what are, to me, fallacies, and you if you take your ideas to a logical conclusion I think you will see they don't make sense. High taxes leading to crime is one good example.
I live in a high-tax country (Belgium) and I am aware of the extent of the black economy. However, this is not a criminal economy except in the eyes of the tax authorities. When the government makes unenforceable laws, people ignore them and life carries on, pretty much as normal.
The criminal networks seem to arise in one very specific situation, which can have many causes. This situation is when the state retreats from enforcing its law in some area or segment of society. I gave some examples already.
Why is the state so important as a law enforcement agency? This question lies at the heart of the matter when it comes to violence and criminal violence.
It has been shown often that violence is self-perpetuating, and for good reason. If your neighbour is likely to come and rob or injure you, you have every interest in going across to his place and doing it to him first. Self-protection means being more aggressive than strictly necessary, since under-aggression leaves one vulnerable. The logic of this is implacable, and leads to vendettas and other extraordinary symptoms of violence.
The state cuts through this cycle by defining itself as the only legal hand of violence. Crimes and punishments are defined a priori, and though this does not necessarily deter crime, it deters the cycle of violence that follows crime.
In every historical instance where a police force is instituted, crime rates fall sharply. A corrupt and violent police force is much, much better than none at all.
Now, how does this fairly successful system sometimes break down? One case is when the victim of a crime cannot go to the authorities. Criminals tend to resort to extreme violence not because it's in their nature, but because they revert to the non-state logic of crime and punishment. And when illogical laws - such as prohibition of alcohol or drugs - creates large "criminal" communities, extreme violence is a natural and inevitable consequence.
The best answer to all this appears to be twofold. Firstly, human nature is basically and generally good, because that is more successful in the long term. Secondly, for this to work we need a strong civil society backed-up by a strong but even-handed state.
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The problem with treating software solely under copyright law is that it does not recognize the functional, technological component inherent in software.
Music is not a functional, algorithmic implementation of a transformative process. There is no mapping of a range to a domain inherent in a piece of music.
Patents are awarded for Inventions (also sometimes termed Implementations), and copyrights for Expressions. If someone were to take an existing well known algorithm, say the bubble sort, and code it up in his language of choice, that work is an expression and is protectable by copyright.
If somebody were to examine and existing piece of mathematics and realize for the first time that it has applicability in solving a sorting problem, and then code it up, he would have both an invention (use of the math in the contect of the sorting problem on a computer) and an expression (the computer code). Clearly this qualifies in some protean sense as an invention.
Heck, the author would even be able to take the result as a working model to the patent office - on his laptop computer, satisfying the old 19th century requirement for a working model.
The concept of a working model of a piece of music just does make sense.
Nor does the concept that a piece of software is solely an expression.
How do you go about differentiating between a "math" invention and your "real" invention?
I said that doubling video compression and RSA encryption didn't even rate the title "software invention", those are actually math "inventions". Once the math is known it is blindingly obvious to apply it to software. Neither one would be a "real" invention.
What about an invention that is 90% software ("math") and 10% mechanical.
That's fine! It doesn't matter what the percents are, so long as it is not 100% software. Just test the patentability criteria. The criteria are (1) utility (2) novelty and (3) nonobviousness. And you go with the patent rules we've always had - the rules before idiots started changing them to make software patentable. The rules said math and software are not patentable subject matter, so you ignore and all any portion about what's going on in the software. Then you look to see if all the patentability criteria are met. (1) Does it have physical utility? (2) Is there novelty? It has to be something novel outside of the software. (3) Is there something non-obvious? It has to be something non-obvious outside of the software.
Your invention can be 99% software and 1% hardware, if it's useful and there is novelty outside of the software and non-obviousness outside of the software then you've invented something and you have a valid patent. You can use as much software in you invention as you like, but the software can't BE the invention.
On the other hand if there is zero novelty outside of the software and zero non-obviousness outside of the software then your "invention" actually lies entirely within software. It is therefore 100% software 0% hardware. You are trying to patent "software per se". You haven't invented anything, all you've done is write an ordinary program and programs are entitled to a copyright, not a patent.
You can have your patent so long as your "invention" isn't pure software.
What if I improve anti-skid brakes by an improved algorithm in the logic of the device? Is this patentable?
Sounds like you are trying to patent a pure software invention there. You mention nothing new aside from writing a new program. You are entitled to copyright protection on any new program.
Had you made some sort of novel and non-obvious change to the brake pads that allowed you to use a different algorithm that reduced heat build-up and increased traction then you get a patent.
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- - You can't take something off the Internet! That's like trying to take pee out of a swimming pool.
My explanation of why Software Patents are oxymoronic.
One point I think I made more clearly, that should have been made in that piece and would have fit perfectly, is that to my knowledge, only software is covered by both Copyright and Patents; it should be no surprise that two systems that were never designed to work together, basically don't! Copyright fits software much better then patents; that's a sign it should be treated under the copyright system and not the patent system. IMHO, I also did a somewhat more thorough job of exploring that point.
Still, for a 1991 essay, that was pretty darned good.