IBM's Supreme Court Brief Says That Patents Drive Free Software

Easy enough by T+Murphy · 2009-09-03 04:37 · Score: 3, Funny

Spore, Crysis and Bioshock are all free, but got all kinds of bad press because some illegitimately-sold non-free copies included patented DRM software. If this DRM had nothing to do with these games I'd bet they would be a lot more popular.

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Re:Easy enough by xouumalperxe · 2009-09-03 05:04 · Score: 3, Funny

But the shoplifted copy would have DRM.

Put's the lie to their open source claims by bitemykarma · 2009-09-03 04:38 · Score: 3, Insightful

software patents 'fueled the explosive growth of open source software development

I guess we know which side IBM is on. Too bad.

Re:Put's the lie to their open source claims by sconeu · 2009-09-03 04:45 · Score: 5, Insightful

IBM is on IBM's side.

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General Relativity: Space-time tells matter where to go; Matter tells space-time what shape to be.
Re:Put's the lie to their open source claims by spazdor · 2009-09-03 05:09 · Score: 4, Funny

HP is not on IBM's side. This I promise you.

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DRM: Terminator crops for your mind!
Re:Put's the lie to their open source claims by Anonymous Coward · 2009-09-03 06:25 · Score: 3, Insightful

Would you stop fucking using the word "evil" already? There's nothing of substance in such claims. No corporation is "evil", and "evil" is just a matter of what side you're on.
So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible? Consider that the most effective corporation would limit the redistribution of wealth on both sides by having as low as possible costs (e.g. labour) and beneficiaries (e.g. owners, shareholders).

And yes - it is a matter of what side you're on. Taking a binary view, if you sit on the side that believes that wealth should be increasingly concentrated then you'd be correct in arguing that no corporation is evil. However, if you believe that wealth should be redistributed to an increasing number of people it would indeed hold that corporations are 'evil', since they'd be harmful to the 'greater good' by design.
Re:Put's the lie to their open source claims by omnix · 2009-09-03 06:47 · Score: 4, Insightful

So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?
The correct term is corporatism or fascism, which seems to be the direction of the Republican party. This is the fundamental argument against unregulated capitalism which has become prevalent in the US over the past 100 years.
Not that I believe the Democrats are any better, since they ultimately are a corporatist organization as well. The Dems just lack the organization...
Re:Put's the lie to their open source claims by Garridan · 2009-09-03 07:34 · Score: 3, Insightful

So what, then, would you call an entity that is in general designed to remove wealth from as many hands as possible and put it into as few hands as possible?
I dunno, maybe "open for business?" Those that are designed to remove wealth from as few hands as possible and put it into as many hands as possible usually don't make it very far.
How do you expect a company to work? People open a business for 2 reasons: (a) because they want to do something they enjoy, and (b) they want to make money. Type (a) generally stays pretty small and they quietly succeed or fail and nobody cares. Type (b) gets large, accumulates lots of customers, and pulls in a lot of profit -- and the people at the top make the most -- and the person (or people) at the very top want to give as little possible money to the people below them, because that's less in their pockets. Or in your terms, "remove wealth from as many hands as possible and put it into as few hands as possible".
Re:Put's the lie to their open source claims by jedidiah · 2009-09-03 08:18 · Score: 3, Insightful

> and there is nothing "evil" about maximizing profit.
This sort of nonsense is EXACTLY why the modern corporation is evil.
We have this culture of robber baron hero worship where corporations
are expected to "screw everyone else" for the short term benefit of
stockholders.
Corporations are already problematic enough. They are mobs of people
with all moral awareness and accountability removed. Short of something
in the corporate charter, any corporation will be as evil as it can get
away with in this climate because that is how rewards and punishments are
structured.
Some corporations just have a more enlightened view of self-interest.

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A Pirate and a Puritan look the same on a balance sheet.
Re:Put's the lie to their open source claims by Spewns · 2009-09-03 08:43 · Score: 3, Insightful

Well done on exemplifying the disaster that is capitalism.
Re:Put's the lie to their open source claims by Shark · 2009-09-03 11:26 · Score: 3, Insightful

"What kind of a society isn't structured on greed? The problem of social organization is how to set up an arrangement under which greed will do the least harm."
-- Milton Friedman

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Mind the frickin' laser...

proper use of the word "patent" by presidenteloco · 2009-09-03 04:40 · Score: 4, Insightful

The following phrases are among the few common uses of the word "patent"
as an adjective:

"That is patent nonsense."

"That is a patent lie."

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Where are we going and why are we in a handbasket?

WTF IBM by Microlith · 2009-09-03 04:41 · Score: 5, Interesting

Good to see that IBM has no clue what they're talking about. Patents most certainly have not fueled the explosive growth of open source software, the open nature of the licenses and community have. But go ahead and misrepresent the open source community IBM, for your own sake.

Patents sit as an ever present threat that threatens to push development outside of software patent permitting countries, and makes software that is known to violate them into seriously gray territory. I also don't see how a patent, something with the sole purpose of denying use of the described mechanism to others, could possibly aid open source.

Re:WTF IBM by Sloppy · 2009-09-03 05:10 · Score: 5, Insightful

Patents most certainly have not fueled the explosive growth of open source software
Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.
All that's really left to debate is whether this project, that project, etc all add up to something that counts as "explosive growth." And at that point, it's just not an interesting question.
Saying patents fuel software development (both free and proprietary, since both types are actually harmed by patents) may be a distortion, because it (misleadingly) implies that the patents help the overall situation, but on its face, the statement is literally true. Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.

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Re:WTF IBM by Microlith · 2009-09-03 05:19 · Score: 5, Insightful

There could be aspects of the Vorbis codec that are patented, but no one knows as no one (for good reason) is looking. VP3 was written well before it became Theora, and unfortunately is in the bad position of being inefficient.
But let's consider what we don't have because of patents? How about wavelet compression, and the adoption of JPEG2000? Completely ground to a halt as one company holds a slew of patents over it.
Yes, patents force people to work around them. They're stuck reinventing the wheel, poorly, and remain at risk of patent suits. The problem with software patents is they're either so stupidly simple that everyone runs over them (and strive to remain ignorant of having done so, to lessen any possible damages) or are so vague that they cover huge swaths, denying entire fields and crippling compatibility.
Re:WTF IBM by camperdave · 2009-09-03 05:23 · Score: 4, Interesting

Patents force people to work around patents.

So a patent produces explosive growth in open source by encouraging the development of alternatives to what the patent covers? Nice. I think I'll use that line as a sig.

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When our name is on the back of your car, we're behind you all the way!
Re:WTF IBM by SanityInAnarchy · 2009-09-03 05:34 · Score: 4, Interesting

We wouldn't have Vorbis if it weren't for the MP3 patents.
No, but we'd have AAC, which is arguably just as good, maybe even better.
And from what everyone is saying, Theora is far inferior to h.264. If patents weren't an issue, we'd all just declare mp4/m4v with h.264 and AAC as the new standard for the video tag, and there'd actually be cross-browser support.
At the moment, because of real patents, Opera and Firefox won't support h.264 (and thus, youtube.com/html5), and because of imagined patents, Safari won't support vorbis. Thus, it's not just open source projects, but open standards, which are neutered by software patents.
You may have a point with libpng, but then again, gif wasn't that bad. Indeed, gif supports things png doesn't -- animations, for one (there are two competing implementations, one of which has growing browser support (but nowhere near png), and one of which has practically no browser support.) I do prefer png, even with the gif patent expired, but at the end of the day, how big of an improvement was it?

Patents force people to work around patents. It's economically inefficient (just as hurricanes fuel the construction industry) and therefore probably not desirable, but it really does happen.
In other words, it's a broken window model.

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Don't thank God, thank a doctor!
Re:WTF IBM by Abreu · 2009-09-03 05:51 · Score: 5, Insightful

Isn't this reasoning similar to the Broken Window Fallacy?
If MP3 didn't have patents, we wouldn't have ogg, true. Which means the talent used to REINVENT THE WHEEL in the ogg codecs would have instead been used to improve the patent-free MP3 instead (or to work on other projects).

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No sig for the moment.
Re:WTF IBM by Chris+Mattern · 2009-09-03 05:54 · Score: 3, Informative

While I agree with your post, a patent is certainly *not* like a hurricane.
Hurricanes destroy value. Patents reallocate value to the inventor.
Patents destroy value because the tarriff exacted by the inventor makes uneconomic uses that would otherwise be practical. Part of the value that is not destroyed is then reallocated to the inventor.
If the value created by encouraging the inventor to make the invention in the first place outweighs the destroyed value, then the patent is still a good thing. But once the invention is in existence, patents unquestionable destroy value.

Is someone under the impression... by Snotman · 2009-09-03 04:41 · Score: 3, Insightful

that IBM is an altruistic company? Of course their comments will be self-serving as the number one patent submitter for years. They have mastered the game of patenting everything and they are not about to let that mountain of assets go.

Here's how it works: by Tablizer · 2009-09-03 04:42 · Score: 5, Interesting

1. Stupid patents piss off techies
2. Techies grow to despise corporate-produced software
3. Techies motivated to make open-source variants to take sales away from evil corporations
4. Profit! (Well, okay, I added this one out of habit.)

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Table-ized A.I.

Re:Here's how it works: by Verdatum · 2009-09-03 05:09 · Score: 4, Interesting

I love this idea. I propose a new slogan: "IBM, we're dicks so the good-guys can one-up us."
Re:Here's how it works: by ajs · 2009-09-03 05:53 · Score: 3, Insightful

Instead of exclusively considering prior art, we should give the public a chance to respond to every patent application by being given a description of the device, and have an opportunity to develop an invention to the device.
This would break the patent system. The goal is not to reward people who solve seemingly intractable problems. The goal is to foster innovation by providing those who innovate with a lock in their inventions. Innovation is often accomplished in small steps. The paper clip was just a way of using wire to hold papers together. Given its description, you could make a paper clip, but the insight and innovation were rewarded with a patent.
When we discuss software patents, there's a new kind of problem. Software is, inherently, an expression of mathematics. Patenting math is tough to accept because you can't change the way math relates to the real world, so you're essentially patenting a piece of the known universe... which doesn't make a lot of sense.
Public key crypto is about the only thing I can see as a defense of patenting software. Here, you're patenting, not the math, but the application of the math to a specific problem domain to perform a task.
But the question is, how do you move from that to a patent system that can discern the difference and make the right call? Fundamentally, I think you need a review system which is populated by real academics and professionals or it simply can't work.

Multimedia by Anonymous Coward · 2009-09-03 04:50 · Score: 4, Insightful

Thanks to patents, there are numerous alternatives to the MP3 format.

Thanks to that GIF patent (now expired), there is PNG.

So yes, patents drive development by "encouraging" people to re-invent a different, maybe better, wheel.

Re:Multimedia by marcansoft · 2009-09-03 05:14 · Score: 3, Insightful

It worked for the better for MP3 (Vorbis) and GIF (PNG), but we're still struggling to get Theora up to h.264's level. I'm personally not sure it's ever going to *quite* happen if they restrict themselves from using patented h.264 features. Nevermind that Theora might infringe on some patents (in fact, it almost certainly does). You can only be sure that something infringes on a patent once you find it, but you'll never know whether there are any patents that cover a portion of your algorithm until they show up trying to sue you.
The only reason why patents "drive" development is by forcing people to develop a non-infringing alternative, and they tend to improve upon it to drive users away from the patented version. A lot less time would be wasted if the open source community could just improve upon existing standards without having to reinvent everything from scratch.

Junk patents by Joce640k · 2009-09-03 04:52 · Score: 4, Insightful

I'm not against *all* patents. Some algorithms have a serious amount of R&D and ingenuity behind them.

The problem is the BLINDINGLY OBVIOUS and TRIVIAL things that are being awarded patents.

Examples:

A special comparison operator for pointers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220040230959%22.PGNR.&OS=DN/20040230959&RS=DN/20040230959

Encoding of floating point numbers as non-negative integers: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220050023524%22.PGNR.&OS=DN/20050023524&RS=DN/20050023524

Policy change notification: http://patft.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PALL&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.htm&r=1&f=G&l=50&s1=7,269,853.PN.&OS=PN/7,269,853&RS=PN/7,269,853

There's zillions of them and I'm pretty sure that every line of code being written today violates at least one. It's the equivalent of allowing copyright of individual English words.

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No sig today...

Re:Junk patents by mayko · 2009-09-03 05:05 · Score: 5, Insightful

The same problem is happening in the biotech industry. Patents are being given out for individual proteins, which is not only stupid, but there is no pressure for these patent holders to actually DO something with them. This kind of shit only helps to hold back legitimate progress.
Re:Junk patents by flymolo · 2009-09-03 05:25 · Score: 4, Insightful

Sadly, I think the answer may be government intervention. I was at the aviation museum in Seattle, and I learned something interesting.
The government had to nationalize a bunch of patents, set the license fees reasonably and pay back the original inventors to get more people working on planes.
It may be that something similar has to happen to get us the web we want.

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"Sometimes it's hard to tell the dancer from the dance." --Corwin Of Amber in CoC

Re:Just a thought... by H0p313ss · 2009-09-03 05:02 · Score: 5, Funny

Aren't open source license agreements also enforced by patent law?

Your task today it to look up the words "patent" and "copyright" and when you are done give us 100 words on why that was a stupid comment.

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Misleading quote in TFA by OhHellWithIt · 2009-09-03 05:11 · Score: 5, Insightful

TFA says:

patent protection has promoted the free sharing of source code [...] which has fueled the explosive growth of open source software development.

Here's the quoted footnote from the Amicus brief:

See, e.g., In re Alappat, 33 F.3d 1526, 1571 (Fed. Cir. 1994) (Newman, J., concurring). Given the reality that software source code is human readable, and object code can be reverse engineered, it is difficult for software developers to resort to secrecy. Thus, without patent protection, the incentives to innovate in the field of software are significantly reduced. Patent protection has promoted the free sharing of source code on a patentee's terms -- which has fueled the explosive growth of open source software development.

The emphasis on "on a patentee's terms" is mine, and the phrase omitted from TFA is vital to the meaning of the sentence as a whole. I believe Adobe's release of the Portable Document Format specification is a case in point. Adobe made the specification available with the stipulation that it not be used to develop products that compete with Adobe's products. The open specification allowed the development of all kinds of open source tools (as well as closed-source tools) that make PDF much more useful to everyone, yet Adobe is protected from having its development investment and future business stolen.

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"Who controls the past controls the future. Who controls the present controls the past." -- George Orwell

Comment removed by account_deleted · 2009-09-03 05:57 · Score: 4, Informative

Comment removed based on user account deletion

Wrong way of going about it... by Theaetetus · 2009-09-03 06:06 · Score: 4, Insightful

EndSoftwarePatents, for its own amicus brief, is looking for help building a list of free software harmed by software patents, and a list of companies that distribute free software and are taxed by patent royalties."

Essentially, their argument hinges on the preamble of Art. 1, sec 8, clause 8 - "To promote the Progress of... useful Arts," and the claim that if software patents stifle innovation, then they're unconstitutional. Problem is, we're not dealing with a fundamental right or an equal protection argument, so the Court will use a rational basis test - could Congress have had a rational basis for passing 35 USC 101 and not excluding software patents? If so, it's constitutional. And the Court always defers to Congress on stuff like that. Asking the Supreme Court to add a software exclusion into Title 35 on a constitutionality argument would be asking them to be "activist judges". And that just isn't going to work.

Want to change the patent statute? Lobby Congress. They have full authority to do anything. There's not even a Constitutional requirement that patents exist - the clause merely gives Congress the power to enact patents, if they want to. But they don't have to. They could outlaw all patents tomorrow and that would be Constitutional (caveat - may have a due process issue for the next 20 years over people who filed for patents already, but that's a separate issue).

Re:Wrong way of going about it... by russotto · 2009-09-03 08:14 · Score: 3, Insightful

Want to change the patent statute? Lobby Congress.
Thank you Marie Antoinette.

Re:Wrong: "Open Source" is well-defined by MarkvW · 2009-09-03 06:19 · Score: 3, Insightful

Just because one person defined a term doesn't mean that all people have to use the term in that way--especially lawyers writing legal briefs. Lawyers twist meaning. That's what's going on here. IBM wants to enlist the cachet of "open source" in aid of its argument. It's as simple as that.

Think about who the IBM lawyer is writing for: The lawyer is writing for the US Supreme Court. Do you think that the Supreme Court will accept the doctrine that the Slashdot meaning of "open source" is the meaning that the Supreme Court must adopt? The definition of "open source" is flat-out fair game right now, and if you assume otherwise you're just a zealot or fanboi.

I'm suggesting that IBM is using the term in a manner different from that used by the FSF/FreeBSD people. The FSF/FreeBSD people need to take that context into account when they frame their argument against IBM's argument.

Anybody remember GIF? by northernboy · 2009-09-03 06:50 · Score: 3, Insightful

I seem to remember in the early days of the web, there was a graphics format called GIF. Somebody like Unisys held a patent on the format, but initially didn't seem to care that most Web users didn't realize there was a patent. Then, one day, Unisys woke up, changed their attitude and announced that licenses would be needed from now on - several thousand dollars? Almost overnight, PNG was born. So, I guess in a sense, IBM has a point - patents lead to open source development. However, they neglect to mention that in cases like ReportLab (makes a Free/Paid Support PDF generator library in Python) a sudden change in licensing policy might result in innovation at the expense of existing innovators.

Patents are a valuable part of a thriving commercial system, and there are obvious benefits from patent law. But I think there are also significant benefits from patent-free zones. The trick is to figure out how to maintain the balance to ensure fairness, and enable benefits from both patented innovation and patent-free innovation.

misplaced arguments by macraig · 2009-09-03 07:20 · Score: 5, Insightful

"Would libpng have been written, if not for the LZW patent? How about all of xiph's codecs? We wouldn't have Vorbis if it weren't for the MP3 patents.

Lemme fix that for ya:

If not for the LZW patent, libpng would never have been needed to be developed. Were it not for the MP3 patents, we wouldn't have needed Vorbis.

Necessity might be the mother of all invention, but in this case it was artificial necessity. The inventions were only necessary to get around the brick walls created by the patents. Tear down the unnatural brick walls, and the innovation could have focused on incrementally improving those existing techniques instead rather than essentially reinventing the wheel just to bypass them.

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IBM's Supreme Court Brief Says That Patents Drive Free Software

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