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How IP Law Helps FOSS Communities

Posted by samzenpus on from the strange-bedfellows dept.

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."

21 of 98 comments (clear)

  1. missing the point by Anonymous Coward · · Score: 3, Insightful

    Open source isn't supposed to help developers. It's supposed to help USERS.

    1. Re:missing the point by Anonymous Coward · · Score: 2, Insightful

      Not really. The "Users" in RMS's time WERE developers of some ability. Even when ERS took up the Open Source banner over Free Software, he was looking at it as a Developer.

      People who are strictly users don't really care. This is how the UNIX vendors, Microsoft and Apple were able to dominate their respective fields for so long. It was only people who wanted to develop extensions of closed software that Open || Free vs closed became an issue.

    2. Re:missing the point by king+neckbeard · · Score: 2

      No. In fact, informed transactions only happen when there is a benefit for both parties. Ignoring that the economics are very different for the tangible and intangible, a key element of all economies as we know them is the benefit of division of labor. Even at actual disadvantage, it is better for both parties to trade so long as a comparative advantage exists. This is literally entry level economics.

      --
      This is my signature. There are many like it, but this one is mine.
    3. Re:missing the point by cervesaebraciator · · Score: 3, Insightful

      Buyer vs. Seller is a zero sum game.

      That is simply false. If it were true, economic exchanges would never occur.

      In a zero sum game, the total cost of the participants gains and losses in utility--for one perhaps increasing and the other decreasing--add up to zero. One side may win, the other may lose, but both sides cannot win.

      Let's say you've developed hydrophobia want to sell your used canoe on Craigslist. Let's say that I want to buy a canoe to go camping on an island in the middle of a lake. Your asking price is $300 and I think it's a good deal. I give you the $300; you give me the canoe. You're looking at this and saying, "Well, I'm less one canoe but I've gained $300 and he's less $300 but he's gained a canoe. So, it's break even." Or worse, you might be thinking, "Ha, that sucker. I had no use for that canoe so it was clearly worthless. But I can now by a sweet raincoat with my $300."

      What you're missing here is a very basic economic reality: value is subjectively determined. Because of your hydrophobia, the canoe has no utility for you. You'd rather spend $300 on rain coats. So the exchange is a gain in utility for you. I, on the other hand, cannot make a paper boat out of three Benjamins and expect to get to my campsite. Money's use is that it can be exchange for something useful. I decide that I'll get more utility out of the canoe than $300 in the bank, so I buy it from you and from my perspective I've also gained in utility. It is, in other words, a win-win.

      Where there is no force, compulsion, coercion, rent-seeking, or other machinations involved, free economic exchanges can always be win-win scenarios. People simply wouldn't trade, buy, or sell if they didn't value what they gained more than what they gave away.

    4. Re:missing the point by someone1234 · · Score: 2

      In Open Source, there is no clear boundary between developers and users. This is actually a benefit of open source, any user could be a developer.

      --
      Patents Drive Free Software as Hurricanes Drive Construction Industry
  2. New Zealand didn't ban software patents... by drussell · · Score: 4, Informative

    They basically just banned adding "on a computer", etc. to a patent automatically becoming a new patentable "invention".

    1. Re:New Zealand didn't ban software patents... by Nuke+Bloodaxe · · Score: 5, Informative

      *sigh* I am in New Zealand, and yes I have read and understood the legislation. For full disclosure I am also an Associate Member of the IITP, one of the groups who pushed hard to get this mess sorted out.

      Most people skip the most important line which reads:

      "A computer program is not a patentable invention." Section 15, part 3A: http://www.legislation.govt.nz/bill/government/2008/0235/latest/whole.html?search=sw_096be8ed8054d616_computer+program_25_se&p=1#DLM1419225

      Now, is that unclear to anyone?

    2. Re:New Zealand didn't ban software patents... by Nuke+Bloodaxe · · Score: 2

      It's a bit too early in the piece to see the legal ramifications at this stage, but I'll give you a brief outline of what would most likely happen in this environment:

      "A system comprising a computer with a touch-sensing display, and a program running on that computer such that gesture A causes the computer to display blah blah blah" ; this is actually two separate things, one is the physical hardware which is a device capable of sensing touch. The program running on the device that performs other actions in reaction to the manipulation of that device is considered software, as it may be substituted at any point by another program that can interpret the gesture differently.

      The real interesting bit is actually the touch sensing display, which would be a device with embedded software that provides a basic API for positional feedback. If the embedded software provides gesture recognition as part of the panel, independent of the computer, then you have something that would probably be patentable. This would not stop someone creating another panel that could sense touch, but leave out all of the embedded API to the point it only provided RAW touch output and had to rely 100% on a software implementation for the rest; in that case you can patent the panel, but the software would be covered under standard copyright. In each case the software can be considered independent of the panel, except when the panel itself provides feedback to a computer as a result of embedded software [even then it has to be considered in it's entirety, not as independent bits, and would be trivial to get around.]

      Now there is an older article here: http://www.iitp.org.nz/newsletter/article/430 Where if you look down to "The New Amendment", keyfeatures, point 4 you'll get the gist of where we are at. There are probably better sources and articles, but unfortunately I don't have them to hand right now. Key thing to remember is that it's all untested at this time, wait and see :)

  3. Ain't that a surprise.. not.. by Anonymous Coward · · Score: 5, Insightful

    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?

    1. Re:Ain't that a surprise.. not.. by AHuxley · · Score: 3, Insightful

      Expect to see a lot more efforts like that after the NZ changes.
      From sockpuppets, astroturfing to huge reports and fancy foundations ... the public has to be corrected on the NZ legal story.

      --
      Domestic spying is now "Benign Information Gathering"
    2. Re:Ain't that a surprise.. not.. by recoiledsnake · · Score: 2, Interesting

      Outercurve's president seems to be the Apache Software Foundation's cofounder though.

      Jim Jagielski, a co-founder of the Apache Software Foundation; a director of the Open Source Initiative; and currently a consulting software engineer for Linux giant Red Hat is now president of the Microsoft-sponsored, open-source friendly Outercurve Foundation's Board of Directors.

      http://www.zdnet.com/microsoft-sponsored-outercurve-foundation-turns-to-apache-for-leadership-7000017596/

      --
      This space for rent.
    3. Re:Ain't that a surprise.. not.. by Hairy1 · · Score: 2

      No - really - we did. Not sure if this is simply ignorance or wilful deception, but Software Patents are toast in New Zealand.

      Now it may be true that you can still have embedded software which is part of a larger hardware system, but in terms of getting patents on software that runs on general purpose computers - they are most certainly not going to be granted.

      Of course this does not invalidate existing patents, and we are yet to see any test cases that will better define the edge cases.

    4. Re:Ain't that a surprise.. not.. by Yvanhoe · · Score: 2

      Understanding the system, using it, subverting it, is totally fine. But some people will always confuse "having a use for something" with "loving this system".

      IP laws are despicable, costly to mankind, dangerous for research and harmful for the economy. I am still making business plans that rely on these bad rules of the game, just like I would include corruption in my plans if it was unavoidable in my country.

      Yes, rethinking copyright laws would force us to rethink all the open source licences. We would do that happily. Software patents can disappear overnight, OSS would not break a sweat over that. And trademarks are currently the less problematic aspect of IP laws.

      --
      The Wise adapts himself to the world. The Fool adapts the world to himself. Therefore, all progress depends on the Fool.
  4. not a good sell by king+neckbeard · · Score: 3, Insightful

    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.
  5. Still don't see patents helping by andymadigan · · Score: 2

    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.
    1. Re:Still don't see patents helping by Jaime2 · · Score: 4, Interesting

      That's how all of his points shake out. Every single one boiled down to... "Sure this law nearly turns thinking into crime, but there are some exceptions that you can work in". The FOSS philosophy requires no law to exist. For-profit software couldn't exist without legal protection. I'm not saying for-profit software is bad, but it certainly requires legal protection to sell something that requires almost no physical effort to reproduce.

      The question we can't get any real public dialog on is "How much protection is the right amount to create the world we want to live in?"

    2. Re:Still don't see patents helping by Hairy1 · · Score: 2

      A case can be made for all current 'intellectual property', but in essence it is all founded in a social contract. Its a deal we enter. Trademarks exist to protect good will and brand identity. There is a social benefit in knowing a certain product is made by a certain company because characteristics like quality can be inferred. Without trademarks any time some company got an edge with its name the name would be copied by competitors.

      In copyright there is a social benefit in the support of the creative arts. There is a question about whether the author/musician/film maker really needs to retain control for their lifetime plus 90 years however. It would seem more reasonable to limit it to say 10 years, thus giving the creator a opportunity for profit, but allowing it to enter the public domain for reuse in a reasonable period.

      Patents are mostly evil and counter productive. Not just in software. From software to healthcare they make things more expensive and higher risk. The benefits usually presuppose what they are trying to establish; the existence of patents. Patents are justified by the social benefit of the release of information such that it will enter the public domain. To a large extent this encouragement to release the details of a software invention was renderer irrelevant by the open source community. The only remaining argument is a ethical one based on the presumed right of someone coming up with an idea to protect it. The problem is that others may come up with the same idea independently. Besides, there is no moral right to profit from ideas in any other intellectual domain.

    3. Re:Still don't see patents helping by bill_mcgonigle · · Score: 2

      but it certainly requires legal protection to sell something that requires almost no physical effort to reproduce.

      Not if you want support from the guys who wrote it. Which, incidentally, describes some of the arrangements I'm involved with regarding open source software, on both sides. Copyright has never been a factor.

      --
      My God, it's Full of Source!
      OUTSIDE_IP=$(dig +short my.ip @outsideip.net)
  6. Dubious advantages by aNonnyMouseCowered · · Score: 4, Insightful

    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).

  7. Re:again with the version from five years ago? by Nuke+Bloodaxe · · Score: 3, Informative

    Here we have the legislative page: http://www.parliament.nz/en-nz/pb/legislation/bills/00DBHOH_BILL8651_1/patents-bill

    Here we have the link to all related bill documents: http://www.legislation.govt.nz/bill/government/2008/0235/14.0/versions.aspx

    Additionally here we have a link to the "live" bill currently in force, this is the passed version, 235-2: http://www.legislation.govt.nz/bill/government/2008/0235/14.0/whole.html

    If you note Section 15, 3A, it still says the same. This is what is known as a trump line, in that under the currently in force legislation software is an invention which is not patentable.

    I would be most interested in linked examples of what you are referring to, because I certainly have not found it on the government legislative website so far, so that a more informed debate may occur.

  8. Re:again with the version from five years ago? by Nuke+Bloodaxe · · Score: 3, Informative

    Ahh, just spotted what you were referring to, it's a SOP. A supplementary order paper, and in this case it is the one that caused controversy and was not enacted into the final bill: http://www.legislation.govt.nz/sop/government/2013/0237/latest/whole.html#DLM5187401 . I repeat, this SOP is not in force. Such papers are proposals for changes to the bill, you'll see this one is shown to be a proposal by it stating it is so.

    So, please be a bit more careful, and link to your material next time :)