There is a "research exemption" in the United States to patent law... Courts have ruled that it is permissible to construct a patented device under certain limited circumstances, without permission of the patent holder.
Quoting from:
Biotechnology Research & Patent Infringement: Should Research Be Exempt from Charges of Patent Infringement? by David L. Parker and Nicole Stafford
In 21 F. Cas. 554 (C.C.D. Mass. 1813) (No. 12,391), Supreme Court Justice Story ruled that: [The infringement] . . . must be the making with an intent to use for profit and not for the mere purpose of philosophical experiment, or to ascertain the verity and exactness of the specification . . . . In other words, the making must be with an intent to infringe the patent-right, and deprive the owner of the lawful rewards of his discovery.
The analysis continues: Sawin has often been cited for establishing a two-part test for the experimental use exemption: (1) the activity must be for philosophical experiment or for ascertaining the adequacy of the disclosed invention; and (2) the activity must not be carried out with an intent to use for profit.34 This is a broad reading of Sawin on its facts. Another justifiable interpretation is that any use that is not itself a use for profit is not an infringement, with "philosophical experiment" and "determining the adequacy of the disclosure" being merely two examples of uses that are not considered "for profit." After all, the sale by the deputy sheriff was neither philosophical nor an investigation into the patent disclosure.
The question I pose is: Does a GPLed program containing a patented process constitute a patent violation under these criteria, so long as it is distributed gratis, and/or should it?
Claiming that there is a "higher technical risk" in Linux is the most laughable part of it. What about the "technical risk" that Microsoft will change the next release of NT so that your existing Microsoft software (or competing software) stops working, forcing you to buy the "upgrade". What if the next version of NT just happens to break your in-house application? The one that has been working so well for the past two years that you've reassigned most of the programmers?
And who's in the better "technical" position to fix any problems caused by a new release? The linux programmer who has the source code in compilable form, AND a full source code patch history of each and every change, or the NT programmer who has... er...
What's the technical risk of that?
This is pure FUD, designed to scare management types who don't understand what open source is into thinking that Microsoft is looking out for them.
Notice that he never specifically described any "technical risks"... but then this article is designed for non-technical people -- to try to scare them away from Linux.
so in other words, in an effort to force people to buy the new, barely-improved Pentium III, Intel is now going to start paying web sites to install software to lock out non-PIII computers.
It's a shame that the "fire in a theater" line is so often quoted, because it has certainly lost its context, and judging from this article, it has largely lost its meaning. Because we are so largly removed from its context, many people seem to believe that only "reasonable" or civil speech is protected speech.
The actual quote is:
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
-- Justice Oliver Wendell Holmes, Schenck v. United States, 249 U.S. 47 (1919)
If you were to go into your local movie theatre today and yell "fire" in the middle of the show, people would give you an annoyed look, probably tell you to shut up, and maybe call the usher. If you kept it up, you'd probably be thrown out.
This is because theatres are basically safe, fireproof structures. For the most part, you have little or nothing to fear when you step into a modern theatre.
Not so in 1919. In 1919, most theatres were built of wood, and stage sets and curtains were not fireproof. Theatre lighting was accomplished with open flames -- limelight and carbon arcs.
Do a web search on the Iroquois Theatre fire of 1903 for a good example... 600 people were killed in this famous fire, many of them crushed to death in the ensuing panic.
Theatre fires were the "airline crashes" of the day... huge, horrible disasters, claiming hundreds of lives in a matter of minutes.
People were very aware of theatre fires, and if someone yelled "fire", it was very likely that a panic would result, causing death, whether or not there actually was a fire. This is the context from which the quotation should be understood.
Holmes restriction on freedom of speech is more in line with the notion that you can't sneak up on someone who is peering into an open elevator shaft, scream in their ear, then claim "freedom of speech" when they involuntarily jump to their death out of fright.
My point is that the "yelling fire" exception only applies when the speech is likely to cause immediate physical harm or death by way of causing involuntary panic, and is false and malicious. NONE of this applies in any way whatsoever to the OSS arguments here, and I'd like to suggest that people stop trying to use this quote to support such arguments, because it simply does not apply.
Hmm. Now that microsoft has refused to accept returned copies of windows, what is the legal status of the CD-ROMs owned by the end users?
There would appear to be no contract between Microsoft and the owners of the orphaned CD-ROMs containing copies of Windows.
But the owners of these CD-ROMs have legally paid for them, and are legally entitled to keep the physical property, i.e. the CD-ROM.
It seems to me that in the absence of a contract between Microsoft and the owners of these orphaned copies of windows, those copies of windows would revert to being ordinary items, subject to no special license.
In this theory, Microsoft could be seen as having abandoned these copies, and the EULA would no longer be enforcable, leaving only normal copyright protection for these particular copies of windows.
Meaning that if you own one of these special, orphaned copies of windows, you could do many or all of the things specifically forbidden by the EULA... for instance, you could sell or rent your copy of the software, you could separate the components, or use your OEM copy of windows on another computer.
Of great importance to the Wine effort, if this legal theory were to hold up, these particular copies of Windows could be legally reverse engineered for the purpose of developing a windows emulator or clone.
If this legal interpretation is valid, then Microsoft may have made a terrible mistake by refusing to offer refunds.
Hmm... this would allow a clean-room effort to proceed to make wine a true windows emulator.
I wonder how many "interesting" comments are in the source code regarding such things as wine and DR DOS. Might be some monopolistic smoking guns there. Hopefully the DOJ will force the release of the source code unmodified.
Feature creep is not likely to become a problem with free software. Feature creep is mostly a function of the commercial software business model.
At a certain point, given enough time and support, most software reaches a point where it is fairly polished, and does a good job at what it is intended to do.
In the free software development model, at this point, the software developers, having done their work and satisfied themselves, move on to new projects, and except for bug fixes and polishing, the software becomes stable and complete.
In the commercial software development model, there is no time to be wasted... more features MUST be added in order to produce a new version, because the way a commercial software company makes money is by bringing version n+1 to market, and charging its users for the upgrade.
I could name a number of software products that were much better two or more versions ago. None of them are free or open source software.
IBM also has an ADSM (network-based backup) client for Linux. I'm using it to back up my office machine. They're claiming that it's unsupported, but it works very well. Most likely nervousness on their part.
Slashdot Mirror
There is a "research exemption" in the United States to patent law ... Courts have ruled that it is permissible to construct a patented device under certain limited circumstances, without permission of the patent holder.
n al/98/parker.html
Quoting from:
Biotechnology Research & Patent Infringement: Should Research Be Exempt from Charges of Patent Infringement? by David L. Parker and
Nicole Stafford
available online at:
http://www.crpc.rice.edu/autm/publications/jour
In 21 F. Cas. 554 (C.C.D. Mass. 1813) (No. 12,391), Supreme Court Justice Story ruled that:
[The infringement] . . . must be the making with an intent to use for profit and not for the mere purpose of philosophical experiment, or to ascertain the verity and exactness of the specification . . . . In other words, the making must be with an intent to infringe the patent-right, and deprive the owner of the lawful rewards of his discovery.
The analysis continues:
Sawin has often been cited for establishing a two-part test for the experimental use exemption: (1) the activity must be for philosophical experiment or for ascertaining the adequacy of the disclosed invention; and (2) the activity must not be carried out with an intent to use for profit.34 This is a broad reading of Sawin on its facts. Another justifiable interpretation is that any use that is not itself a use for profit is not an infringement, with "philosophical experiment" and "determining the adequacy of the disclosure" being merely two examples of uses that are not considered "for profit." After all, the sale by the deputy sheriff was neither philosophical nor an investigation into the patent disclosure.
The question I pose is: Does a GPLed program containing a patented process constitute a patent violation under these criteria, so long as it is distributed gratis, and/or should it?
- jms
> "Without a long-term technical road map..."
Here he is referring to "Microsoft Bob"
- jms
But in this case it's total propaganda.
... er ...
... but then this article is designed for non-technical people -- to try to scare them away from Linux.
Claiming that there is a "higher technical risk" in Linux is the most laughable part of it. What about the "technical risk" that Microsoft will change the next release of NT so that your existing Microsoft software (or competing software) stops working, forcing you to buy the "upgrade". What if the next version of NT just happens to break your in-house application? The one that has been working so well for the past two years that you've reassigned most of the programmers?
And who's in the better "technical" position to fix any problems caused by a new release? The linux programmer who has the source code in compilable form, AND a full source code patch history of each and every change, or the NT programmer who has
What's the technical risk of that?
This is pure FUD, designed to scare management types who don't understand what open source is into thinking that Microsoft is looking out for them.
Notice that he never specifically described any "technical risks"
so in other words, in an effort to force people to buy the new, barely-improved Pentium III, Intel is now going to start paying web sites to install software to lock out non-PIII computers.
Intel just makes me like them more and more.
It's a shame that the "fire in a theater" line is so often quoted, because it has certainly lost its context, and judging from this article, it has largely lost its meaning. Because we are so largly removed from its context, many people seem to believe that only "reasonable" or civil speech is protected speech.
... 600 people were killed in this famous fire, many of them crushed to death in the ensuing panic.
... huge, horrible disasters, claiming hundreds of lives in a matter of minutes.
The actual quote is:
"The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
-- Justice Oliver Wendell Holmes, Schenck v. United States, 249 U.S. 47 (1919)
If you were to go into your local movie theatre today and yell "fire" in the middle of the show, people would give you an annoyed look, probably tell you to shut up, and maybe call the usher.
If you kept it up, you'd probably be thrown out.
This is because theatres are basically safe, fireproof structures. For the most part, you have little or nothing to fear when you step into a modern theatre.
Not so in 1919. In 1919, most theatres were built of wood, and stage sets and curtains were not fireproof. Theatre lighting was accomplished with open flames -- limelight and carbon arcs.
Do a web search on the Iroquois Theatre fire of 1903 for a good example
Theatre fires were the "airline crashes" of the day
People were very aware of theatre fires, and if someone yelled "fire", it was very likely that a panic would result, causing death, whether or not there actually was a fire. This is the context from which the quotation should be understood.
Holmes restriction on freedom of speech is more in line with the notion that you can't sneak up on someone who is peering into an open elevator shaft, scream in their ear, then claim "freedom of speech" when they involuntarily jump to their death out of fright.
My point is that the "yelling fire" exception only applies when the speech is likely to cause immediate physical harm or death by way of causing involuntary panic, and is false and malicious. NONE of this applies in any way whatsoever to the OSS arguments here, and I'd like to suggest that people stop trying to use this quote to support such arguments, because it simply does not apply.
- John
Hmm. Now that microsoft has refused to accept returned copies of windows, what is the legal status of the CD-ROMs owned by the end users?
... for instance, you could sell or rent your copy of the software, you could separate the components, or use your OEM copy of windows on another computer.
There would appear to be no contract between Microsoft and the owners of the orphaned CD-ROMs containing copies of Windows.
But the owners of these CD-ROMs have legally paid for them, and are legally entitled to keep the physical property, i.e. the CD-ROM.
It seems to me that in the absence of a contract between Microsoft and the owners of these orphaned copies of windows, those copies of windows would revert to being ordinary items, subject to no special license.
In this theory, Microsoft could be seen as having abandoned these copies, and the EULA would no longer be enforcable, leaving only normal copyright protection for these particular copies of windows.
Meaning that if you own one of these special, orphaned copies of windows, you could do many or all of the things specifically forbidden by the EULA
Of great importance to the Wine effort, if this legal theory were to hold up, these particular copies of Windows could be legally reverse engineered for the purpose of developing a windows emulator or clone.
If this legal interpretation is valid, then Microsoft may have made a terrible mistake by refusing to offer refunds.
Any opinions on my uninformed legal speculation?
- John
Hmm ... this would allow a clean-room effort to proceed to make wine a true windows emulator.
I wonder how many "interesting" comments are in the source code regarding such things as wine and DR DOS. Might be some monopolistic smoking guns there. Hopefully the DOJ will force the release of the source code unmodified.
- John
Feature creep is not likely to become a problem with free software. Feature creep is mostly a function of the commercial software business model.
... more features MUST be added in order to produce a new version, because the way a commercial software company makes money is by bringing version n+1 to market, and charging its users for the upgrade.
At a certain point, given enough time and support, most software reaches a point where it is fairly polished, and does a good job at what it is intended to do.
In the free software development model, at this point, the software developers, having done their work and satisfied themselves, move on to new projects, and except for bug fixes and polishing, the software becomes stable and complete.
In the commercial software development model, there is no time to be wasted
I could name a number of software products that were much better two or more versions ago. None of them are free or open source software.
- John
IBM also has an ADSM (network-based backup)
client for Linux. I'm using it to back up
my office machine. They're claiming that it's
unsupported, but it works very well. Most likely
nervousness on their part.