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How IP Law Helps FOSS Communities
dp619 writes "Fighting against software patents (New Zealand has banned them) tends to blind FOSS communities to aspects of IP law that actually serve them well. While certainly not perfect, patent, copyright, trademark, and trade secret law each has something to offer FOSS communities. Penn State law professor Clark Asay wrote a guest post for the Outercurve Foundation briefly describing some of the ways in IP law can help open source developers."
Open source isn't supposed to help developers. It's supposed to help USERS.
They basically just banned adding "on a computer", etc. to a patent automatically becoming a new patentable "invention".
A man from foundation, which has affiliation with Microsoft, telling devs how FOSS can benefit from IP law. I see these words more like "come to the dark side, play our game...". How about abandoning stuff like software patents and we all benefit?
Slashdot disappeared there for a few minutes.
I felt lost.
He doesn't sell it very well. He mentions the things that each portion of law DOESN'T do as an advantage. However, said thing is often done by another portion of the law, and without those laws, FOSS communities can do anything they wanted. The closest to an actual advantage listed is the DMCA's safe harbor, which is probably less than we would have had received had a court ruled on the issue. He has somewhat of a point about trademark, but it's a mixed bag, and far from the best vehicle for source designation in its current form. All in all, though this jackass demosntrates perfect why GNU considers "Intellectual Property" a word to avoid.
This is my signature. There are many like it, but this one is mine.
His argument on patents seems to come down to the idea that FOSS can generate prior art, but that's only necessary because patent law exists in the first place. It still provides no net benefit to FOSS.
The right to protest the State is more sacred than the State.
The arguments for IP helping FOSS are weak:
1) Copyright. The FOSS movement was created as a reaction against copyright being applied to software.
2) DMCA. How many DMCA cease-and-desist notices have we seen used to support FOSS, and how many have been issued against legitimate FOSS?
3) Trademarks. Same question as above. And the commercial branches of some FOSS projects have used trademarks to kill competing support/education.
4) Patents. No need for comment, TFA can only talk about "prior art" as a defence.
5) Trade secrets. FOSS has nothing to do with keeping information secret. Same line of argument as for patents.
Imagine a mugger who claimed that he's a good mugger because he left you with enough money to catch the bus home. Should you be thankful that he didn't shoot you and that "all" you lost was a few hundred dollars, your credit card, and last year's iPhone?
What the blog claims as the advantages of IP laws, such as DMCA's safe harbor and the limts on copyright and patents, are problems that wouldn't exist if the laws didn't exist in the first place (if the mugger didn't mug you, you wouldn't feel the need to be thankful that he spared your life).
IP law is like traffic rules. Can be really useful, but also open to abuse. Which way it goes depends on who makes the actual rules -- all too often the wrong people.
TFA doesn't say anything about laws that help FOSS, except for trademarks. Because they don't help. TFA only mentions a few cases where they don't hinder.
> smartphones and tablets which has nothing to do with free software.
Yeah, it's not like most smartphones run Linux or something. ;)
Microsoft wasn't late; they've been trying to do smartphones for at least ten years. Their system, Windows, just isn't any good for phones. Windows, as it's name implies, is designed for having many windows open doing different things, on hardware large enough to handle many concurrent applications. On a phone, you need to start with a small kernel with real-time capabilities, then build apps on top of that. You need Linux.
You're linking to the 2008 version. GP accurately described the version that was actually passed.
The final version even included examples. It says that on one hand taking an old invention and implementing it in software doesn't make it new, on the other hand a new invention that happens to be built in C++ is a new invention. In other words, whether it's software, hardware, firmware, or dinnerware doesn't effect patentability.
Newness controls.
I wish I had mod points. You've thought things through and offered solutions, like shorter patent terms.
I wholeheartedly agree, a lot of bad patents, mostly overbroad ones or non-novel ones have been granted. That doesn't mean that a specific patent on a legitimately new invention shouldn't be issued just because the inventor built the invention on an SSD rather than discrete transistors. It means USPTO needs to stop issuing patents on things that aren't new, are obvious, or are too broad - all of which is current law.
I contribute to several open source projects, and I'm the maintainer for some. So I "get" open source. Your idea of "requires no effort" irks me, though, because it leads to very incorrect conclusions.
FOSS works well when many people want the same software. Apache and Linux are examples - everyone needs an operating system and there are millions of web servers. If 0.1% of users contribute,
they can build and maintain good software together.
Where proprietary software works well is when there are a limited number of users. If 1,000 people need a particular type of software, 0.1% participation in development is ONE GUY doing all the work. I've been that one guy, spending thousands of hours developing an application that saves people a ton of money. I do need the other 999 users to finance the cost, or the software wouldn't get written. Making 1,000 copies costs over $100,000. Adding one more doesn't cost that much MORE, but the effort and the cost is very real.
I mentioned that if the other 999 users don't do their part and pay for the software, the software won't be developed. That's exactly what has happened with the software I spent over a decade on. An entire industry will no longer have a working version of the software they rely on because some of them thought it would be okay for them to steal it, leaving others to pay the costs . They won't get an IPv6 version and everybody loses, because I can't spend a few weeks working on something that will just be stolen. There are real costs, and if you take the product without paying your share of the cost, you leave someone else having to pay your share.
There is patent law, there is trademark law, there is copyright law, and so on. Those are all quite different laws with quite different rules and quite different objectives. Therefore it simply doesn't make sense to say "IP law is good" or "IP law is bad."
Thing is, though, as a tool, it should assist the user in helping them do what they want,
Yup. Do what the *end users want*.
The tool should *not work against them*.
Not do what *the makers decided to do*.
It should do what the end users want, even if the end user want to do something weird.
I should not be served a DCMA because I use a hammer as a paper weight instead of using it for nailing.
If I want to pry appart two pieces stuck together, I can use a screw driver. I won't be required to buy an extra "pro business deluxe" license to acquire a small chisel because screw drivers are only for screws even if they have the exact shape I need.
Re-purposing something to be used as something else that wasn't thought by the maker is a normal think.
Also tools and object don't work against you. When you open a condom package, no secret database will record which person had sexual activities together. When I put a book into my shelf I more or less expect to find it back with the same content (baring from accident involving cats pushing everything or 3-years-old with a crayon in the hand), I don't expect its content to have been remotely sanitized to please the powers to be.
After all, if a tool doesn't help you, it's pointless.
Same for tools which work against you instead of helping you.
Same for tools which you are forbiden to use in a certain way.
Just imagine a world were "your license doesn't cover that use, you're breaching end-user-license-agreement by doing that and we will revoke the tool" was applied to real object like WD-40 and Duck-tape ?
A car helps transport people - but drivers don't have to be mechanics to use them.
On the other hand, I you happen to be a mechanic you can tweak the car. Even if you're not, your are still allowed to open the hood and do a quick trouble shooting for things within your capabilities if you want. You don't need, but that doesn't mean you're forbidden by law to even think about doing it.
You can even add after market part and other modification to a car (as long as some ciritcal part pass enough safety-certifications as not putting people in danger. Just like an after market power supply won't immediately provoke a fire the instant you try to use it with your computer).
Or at least that was until recently, until software started appearing in the mix. Now you have weird stuff, like onboard computer which can only be serviced by a licensed technician using special connection to access the car over a proprietary and secret connector+protocol, or car which only accept MANUFACTURER-licensed after market parts because the electronics only speak a proprietary protocol.
Yup. It's your car, but even if you wanted it, you couldn't do what you want with it (Even if the thing you want won't kill anybody).
Compare that on a farm where an old borken tractor's motor could be repurposed to power something else.
Likewise a computer is useful for many things - entertainment, communications, assistance, information delivery, etc. But you have to realize that users don't care how it works - they don't want to know because that's not reason why the computer is so useful.
I don't care how a piano work. I just play it. I call a specialist to tune it, repair it, etc.
BUT I would be really pissed off if I got sued the moment I open it's hood just to look at the hammers.
Or advanced research - things like software defined radios (these people don't care how computers work - they write their DSP algorithms and have them "magically" work - they don't care about OS updates or kernels or whatever).
You realise that you exactly brought up one of the reasons to keep thing openable? advanced research? Even if radio is heavily regulated (to avoid one accidentally fucking up another transmission), you can still do research and even progra
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
Also, software patents (and in general, patents on anything not physical, like "methods") make no sense at all.
Patents did make sense for industrial inventions.
It makes sense because physical objects take resources to create, they're expensive.
Idea are cheap: they are mostly free. It's the implementation that's challenging.
Back to the car method:
- If I'm the inventor of cars, I won't be able to create a prototype. I would need materials, I would need physical experimentation, etc. To invent cars, I would need to go talk to some industrials. Explain to them what a car is (or would be), and ask for funds to actually be able to at least test the idea and see if it works.
The risk is that industrials will listen carefully, will answer "no, thanks" and pretend not to be interested, then once you step out, start building your invention and getting all the money and keeping it for themselves.
You need patent to protect complex designs of physical objects.
- If you're a software engineer (well I'm actually soft of in this business), and have an Idea (or 20 different, actually), you don't need no industrial sponsor to finance complex building process. Just lock your self with a few beer, fire up the laptop and type your code over the week-end and see how it turns out.
It only costs time and a few basic equipement.
Nothing that needs to be protected.
Idea come for free, writing code is cheap.
Making a complete design for a physical object is much more complex, building a prototype requires lots of ressources.
Only one of the two needs patent protection.
"Sufficiently advanced satire is indistinguishable from reality." - [Tips: 1DrYakQDKCQ6y52z6QbnkxHXAocMZJE61o ]
Therefore there's no need for copyright law and FOSS. The GPL could function just fine. If someone decided that they wouldn't agree, the result of their work would be decompiled and used by everyone else anyway.
FOSS works without copyrights because FOSS is a reaction to the restrictions on the information that copyright gives. Without those restrictions, there's no need for the reaction and therefore no need for FOSS since the result it was arranged for is already there.