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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."

11 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 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.

  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?

  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"
  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. 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?"

  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 :)