Circumventing DRM is not copyright infringment! There is no fair use defense to DMCA violations! The clause is completely worthless, it says that a non-existant defense is not affected.
That argument is specious, Alsee. As my law school contracts professor used to say: "That dog won't hunt."
The DMCA comprises an expansion of copyright. Its central purpose is to broaden the definition of copyright infringement - e.g., to encompass circumventing anti-piracy controls are designed (at least superficially) to enforce copyrights. If you're being charged as violating the DMCA, you're being accused of violating copyright.
In that light, "nothing in this section shall be construed to limit defenses to copyright infringement" is of course relevant. All of the traditional defenses to copyright infringement are available as defenses to the DMCA. That's the plain meaning of the words. (How those words jive with the rest of the act remains a significant issue.)
Interpreted as you suggest, yes, this clause means nothing. It would be like an anti-terrorism act stating that it didn't intend to change any defenses to domestic charges of IRS fraud. In fact, the nonsensical consequence of this interpretation is strong grounds for rejecting it.
So really, the only time the DMCA can be applied to someone is when they were breaking the law already anyways (even if the DMCA weren't law), which makes the DMCA redundant at best, and a waste of everyone's time at worst.
The DMCA is contradictory on this point. It does state that it won't be construed to change fair use concepts. But it also states, quite clearly, that copyright measures cannot be circumvented. It's not clear which section controls. One would hope the rules of statutory construction (particularly, a bias toward non-contradictory interpretation) would favor the former - i.e., implicitly, one may break copyright enforcement measures in furtherance of fair use - but this is not at all clear.
Also: The DMCA criminalizes some activity that isn't fair use, but that must fairly be permitted. For instance, reverse-engineering for commercial purposes is not typically regarded as fair use, but has been tolerated in the interest of market competition. Lexmark comes to mind here, in its attempt to assert the DMCA against a company that reverse-engineered its printer hardware in order to produce non-Lexmark-branded (and infinitely cheaper) toner cartridges. Of course, Lexmark lost that suit, but the ruling was quite limited to the field of access/lockout codes.
Sony is a little mysterious that way! One would think it could recoup some music losses thru its hardware sales.
In fact, they're trying the opposite tactic. They have essentially missed the whole MP3 player market - entering the field late, and with a product that was both indistinguishable from a dozen also-rans and rendered lame by copyright restrictions. So they are endeavoring to propagate the "repeat media sale" model to these new devices. They sell you one copy of the CD for your home computer, another copy for your car, a third for your MP3 player...
This is perhaps the greatest threat of the P2P/open-media frontier: the big media gravy train is coming to an end, as the public realizes it should only have to buy content once.
Commando sounded amazing (and still does!) - this was one of the few games in history where the home port kicked ass compared with the arcade version (both gampelay and music were tweaked to be a lot more fun.)
And, of course, the M.U.L.E. theme song continues to haunt me in my sleep. Just one more game... I'm sure I can corner the crystite market this time...
As mentioned repeatedly on slashdot, IP law is now critical to nerds. No one can write software and put it out there for the public to use without having to consider IP law (even deciding to put it in the public domain is a decision in IP law). Back in the day, when nerds were all in the basements and few people had a computer no one cared about IP. But with more than half of the US licensing software IP law is more and more a part of everyday lives. And if you're a nerd who programs or even just tinkers it's an important part of your hobby.
You can personally choose to ignore it, but it's at your own expense. If you don't fight to keep IP laws fair you'll one day find it's illegal or too expensive to be a nerd.
I'm probably your mortal enemy in this regard - I'm a software patent attorney. (But if it's possible, I'm the good kind - I'm horrified by notions of patents on "e-Commerce" and the ISNOT operator - and I want to reform the system so that only truly new, truly useful software gets patented.)
But I completely agree with you - this issue is too important for software developers, even hobbyists (like me), to disregard. The set of rights and obligations inherent in a patent used to be this weird, insubstantial body of theoretical (imaginary) value. It's become surprisingly concrete and relevant.
The good news is that the patent process is too expensive to be used frivolously, so once we build up a sufficient store of software prior art (and, hopefully, a competent patent office examining corps), software patents will - like biotech before it - mostly be limited to fights between big companies. Let's hope history repeats itself.
I guess they don't have to police everything themselves now.
Yup. They get us to do it - and to pay for the enforcement, out of our own tax dollars.
I wonder... Once the RIAA pays enough senators to make copyright infringement punishable by death, do you think they'll send your family a bill for the bullet?
The industry can barely stop a 1k spyware.
Apples and submarines. The industry has no interest, none whatsoever, to kill spyware on your machine. The only companies that do are those pitching anti-spyware products at you. Sure, those warez could be completely bulletproof, given a billion-dollar market incentive. Don't count on it, though.
The MPAA, otoh, has an enormous incentive to preserve its bloated cash-cow market. And so they will buy every senator, judge, hardware manufacturer, and code monkey they can until the system serves them again. They can throw more money at the "problem" than you can. Game over, man.
Now, I have tremendous faith that they'll fuck up their first 500 attempts to develop hardware restrictions that actually work. My concern is that the 501st will probably succeed. Because thanks to all those Britney Spears fans buying her shitty records, the MPAA can keep trying until it gets it right. It's practically a force of nature.
Our only hope is a representative government that supports its body politic, as a whole, rather than a single mega-wealthy corporation.... So, yeah, we're fux0red.
First, I can't think of a more mundane and generic title. Continung this trend, the next Pixar film should be called Shoes - or maybe Toothbrushes. It's a moving story about a friendship between a floss dispenser and a tube of whitening toothpaste, and it also promotes dental hygiene!
Second - this is going to be hard - I love Pixar, and find their films to be great entertainment. But their schtick is starting to wear a little thin. We've done bugs, toys, monsters, and fish, and they've talked about doing robots. Now we're moving into consumer products. I'm curious how much longer this trend can continue, and whether or not they'll start slipping into that most humdrum of habits - the serial. Is it time for Toy Story 3 yet?
Pixar is brimming with incredible talent. That's why it will be such a shame if the public tires of seeing it applied to rather cliche genres. This is fantasy - we need new fantasy environments. Really alternate-reality stuff that veers between comic and wondrous. In the end, that's the highest calling of uber-powerful CGI art: to allow us to envision a previously unimaginable world. I think Pixar is, oddly enough, missing the boat in that regard.
So long as software patents exist I would not oppose you if you want to fight for exempting software from copyright.
I'll take that compromise. Double coverage is nothing but a fencepost perch.
Since when have mathemetians and programmers called themselves "inventors"?
I doubt that the creators of engineering schematics would prefer the term "inventor" to "author." Nevertheless, a schematic is a strictly functional document - certainly some aesthetic concepts might be taken into account, but its primary purpose is solely functional.
I'll set aside for now the facts that (a) this is a really bad categorization argument, and (b) most programmers have little understanding of the commercial value of their code, so it would be better to ask their employer (who actually owns the code) about its characterization.
All softwarer is nothing more than mental steps. You do not need a computer to run software.... Patents are for physical objects and physical processes. They were never intended to cover mental processes.
I think it's disingenuous to lump together software and mental processes. Do you anyone who's ever sat down with a pencil and paper to decrypt a 128-bit RSA-encoded message according to the patented algorithm? Or who sat down with pencil, paper, and a long printout of binary data to compress it for better transmission over a modem?
Let's look at this in a technical fashion. Any process implemented in software can also be implemented in hardware, and vice versa. You can take any patented or patentable software process and write a circuit that will perform the same process. Indeed, that's how the first true software patents were granted - they were shoehorned into a circuit or general-purpose computer and claimed as a novel device. Same result, but crowded around inconsistencies and baggage.
And then there's the practical angle: Eliminating software patents would force all inventors of truly useful software to release them only as dedicated hardware, which they could patent (along with the process.) EEs have evolved to the point where modern ROMs are undumpable and unmonitorable - the circuit boards are loaded with suicide chips and sensors, so you can't just emulate the circuit in hardware. How's that for impeding innovation? Others can't even practice the invention for the purpose of experimentation, because they can't determine how the circuit works. Do you really want to encourage a return to (gulp) hardware dongles? I don't.
And how the Patent Office construed that ruling as meaning that any "invention" with the word computer in it gets a rubber stamp is absolutely mind boggling.
Huh? I don't think you're understanding the history.
The court's ruling was that patent claims for algorithms could not be categorically rejected as non-statutory subject matter - i.e., as non-patentable inventions. In addition to all of the other tests of patentability (novelty, utility, non-obviousness, etc.), the algorithm also had to have at least one of two connections to the real world:
It had to have a "real-world impact" (i.e., it controlled a machine), and/or
It had to operate on "real-world inputs" (i.e., sensors.)
And the USPTO consistently applied those restrictions. That made sense, since the USPTO fiercely opposed the concept of software patents in the 1990s, even after the State Street Bank decision that overrode their opinions. So it's unfair to state that the USPTO construed the court opinion with overbreadth; on the contrary, it sought to limit it as much as possible.
Almost all studies I've seen claim that the incentives to innovate in software is competition.
Correct. But that is today. Software development in twenty years will likely look very different.
Consider: None of these arguments is, well, novel - they have thirty years of dust on them. They were all made regarding biotech, too. Thirty years ago, the instigators of the uproar over biotech patents said that:
Biotech patents would prevent normal researchers from using basic, ordinary benchtop lab practices.
Biotech patents would basically centralize all of biotech within two or three massive companies that would no longer need to innovate.
The USPTO could not even hope to staff its examiners with biotech experts, and therefore could not conduct a valid examination, leading to a torrent of facially invalid biotech patents for all eternity.
Biotech patents would basically cause the end of biotech innovation. No more medical therapies; no more lab research; no more industrial biochemistry.
Fortunately, those arguments were declined. Obviously, the predicted cataclysm has not materialized. Today, our biotech industry is basically causing a golden age of medicine - we're creating far more disease cures, far faster, than ever before in history.
So it's pretty simple:
Biomedical innovation requires funding.
Funding of early-stage biomedical innovation comes from investors.
Investors only invest in companies that have a strong business plan.
A strong business plan that hinges on conducting expensive research to create a new market must mention a way to gain a return on investment by securing that market for a limited time.
Software is not markedly different. In a nutshell, I will offer the following insights:
Software technologies and techniques that are routine and ubiquitous today will still be routine and ubiquitous tomorrow - free of patents.
Bad software patents expire 20 years after their filing date, just as do valuable patents. Thus, even bad patents today - those that cover routine techniques - will expire and become public knowledge in a few years.
The industry will become more selective about filing software patents. It must, since absurdities like patents on hash tables will never be useful to anyone. Even large companies cannot afford to throw away vast sums of money on patent portfolios that are not enforceable.
By approximately 2020, we will have an incredibly well-documented record of the state of software development - both in the form of 50 years of programming journals, and in the form of all previously-filed software patent applications. The patent system will improve, as it has before.
There is no "need" for software patents. Software is protected by copyright. Why the heck should software be the only thing on earth with broken double coverage and broken double restrictions of both copyright and patents?
If either form of protection should get canned, it's copyright. A functional set of instructions, or a work of art - which better describes software? In which context is it overwhelmingly applied?
I'll give you two other reasons for software patents over software copyright:
Patents expire 20 years after filing. That term is locked in, and it is virtually unmovable. Copyright in America lasts up to 95 years after the life of the author, and continues to grow (thanks to a corporation-owned Congress.)
Let's say you spend several years of your life designing a new compression algorithm, and that it is completely awesome. Now, which would you, as its inventor, prefer: to protect any use of that compression algorithm, or only to protect your particular implementation of it - i.e., your code? Someone can take your C# code, or even assembly, and re-implement it in Perl or Python or Visual BASIC or whatever, and you, the inventor of the code, have basically lost all of the commercial value of your work.
(I fully expect the responses to include: "But software wants to be free, maaaaaan! Patents are just ways that The Man oppresses us coders!" I'll address those in a separate post.)
That's funny, I thought it was explicitly allowed [justice.gc.ca]. Granted that's just Canada... but the US is not the only country out there.
Well, obviously, it's not illegal under the DMCA in Canada, regardless of any exceptions.
To get to the substantive point: The DMCA broadly illegalizes the breaking of copyright protection - teaching someone how to do it, writing software to do it, using the software, whatever. The motive doesn't matter. Even if you're doing it to protect legitimate rights carved out from Betamax - most notably, creating an archival backup - it's illegal.
Of course, this is complete bullshit for the many honest people, like me, who just want to be able to listen to their 20th-century-tech audio CD through another device, or who want to back it up to prevent bit rot. And that's why we routinely ignore it for these purposes. But copyright-respecting (cripped) technology is on the horizon, and the fight against it must be waged now.
I buy tunes from Itunes and strip the DRM then when I get 4 gig, I burn to DVD.
Good luck with that. Especially since it's illegal under the DMCA. And since future versions of Intel hardware and Microsoft software will put a hard block on your ability to do this.
Don't get me wrong - I believe that you have every right to do this, and I'm a very strong proponent of completely open media formats (which currently includes MP3, though that *might* go away.)
My point is that you're putting your trust in two companies that have already publicly stated their intentions to betray that trust in the near future.
For programming, at 25 my brain slows down to zero and I keep on losing track of what I'm doing, and end up spending all my time browsing the web.
25 degrees C is uncomfortably warm if you're wearing a shirt and tie, or full battle gear (suit), as is typical of my law firm and many other professional groups.
But 25 degrees C is damn perfect if you're wearing comfortable clothing, like shorts, a T-shirt, and flip-flops. By no coincidence, I'm most productive when I'm comfortable, which includes how I'm dressed.
I hope that this starts a trend back to more casual dress. We were headed there in 1999, but the shock waves of the.com bust produced a backlash to heavy, formal clothing. Hopefully we can resurrect the previous trend.
Absolutely. By this reasoning, gasoline if cars cost less. Although the products are used together, their prices and markets are almost completely unrelated.
In addition, many people seem to be particularly upset that they're forced to pay Microsoft enormous sums again, and again, even if they don't want to.
Correct. That is, of course, Microsoft's core business: virtually all of their strategy involves cementing the position of Windows on the desktop, so that they can charge people again for the same product every time they buy the machine. An even better example is Microsoft Office, which hasn't noticeably improved since before 2000, yet still costs $250 or so.
Let's hope that the rise of Mac OS X, Linux, Novell, and Sun as desktop competitors will finally provide a viable choice for both home and business.
Sadly, that really won't happen until there is one compatible, OS-neutral software platform. Most new commercial software is written for Windows - that's simply a fact - and it's because of (a) the network effect of such a large market, and (b) the success Microsoft has had with making Windows software development incredibly easy. Compare a nicely-fleshed-out Windows application, with automatic visual styles and Direct3D and OpenFileDialog boxes, with wonky Java applets that might run in a browser, and might just break.
So the way to break the Windows monopoly is to create one finely-honed programming platform. When the latest 3D games and business apps run just as well (or better!) on Linux as on Windows, the migration barrier will be much reduced, and people will switch in greater numbers.
The idea behind patents is that after the patent expires, the technology covered by the patent goes into the public domain. How can a software patent go into the public domain without source code to support it?
Uh, because the patent discloses the invention with sufficient clarity to allow one of reasonable skill in the art to make and use the invention for its intended purpose without undue experimentation.
Those words - from memory, but practically verbatim - comprise one of the core requirements of a patent application. If you don't do that, your patent application is rejected. (Now, the question exists whether or not that requirement is being satisfied for the software arts. But any problems of this kind are related to a poor implementation of a sound principle, and the USPTO is working to improve that.)
In short: For any true software invention, I don't need source code to understand what's going on. I just need someone to explain the functional principle to me, and then I can go code it up in my language of choice. You have a new and more efficient hashing algorithm? Great! Tell me what it's doing differently.
If your invention is so heavily dependent on a particular implementation that one need the source code to make it work, then it's not much of an invention.
So why should source code be required? Without the soruce code, you could die, disappear, your house could burn to the ground, whatever, and the patent you have been granted will expire with no way of retrieving the source code so the technology can become public domain.
But which is harder: Reading about the functional principles of an invention and coding an implementation, vs. hashing through someone's undocumented source code to figure out what it's doing? I maintain that the latter is, on average, far more difficult. Most interesting code still gets wrapped in many layers of trivial or unrelated code; logically teasing them apart can feel like conducting brain surgery.
Here's my concern about your principle: It is commonplace and easy to implement even a very simple software concept as a convoluted, obfuscated tangle of spaghetti code. Hell, that's the whole reason anyone uses Perl.;) This is frequently done to protect a trade secret, and sometimes to ensure the coder's job security. If we require source code to accompany software patents, software patentees have every incentive to provide code that is completely functional, but completely impenetrable by people without a lot of work.
Consequently, the poor patent examiner, already balancing the software concept against prior art against the entire contents of the MPEP, must now also strive to make sense of intentionally obfuscated code. If he complains, the patent applicant will put forth the argument that the code demonstrably works, and will assert that the examiner is just technically incompetent. The examiner will likely not be able to counter that argument, and will just allow the application.
You think the state of software patents is bad now? Wait until it's flooded with thousands of patents, undoubtedly entitled "Software process" or something similarly vague, stapled to thirty pages of intentionally bungled source code.
You see, in the meantime, we *can* take the source code and drop it into our programs.
Is that the goal of the patent system - to produce a bunch of working models that we can copy and set into motion without comprehension? In that case, why not just register the copyright for your source code? Everyone gets your source code, but you keep the rights to it - that's exactly what copyright does.
Patents are intentionally removed from a specific implementation - they focus on the underlying principle. If explained in sufficient clarity (as required), the principle can then be taken away and used in any implementation (subject to the limited-term rights of the invento
I think this is a really good idea. But, the licence could not be the GNU GPL.
Well, there's precedent for it. The USPTO used to encourage inventors (strongly) to submit a working model of each invention with their patent application. The models would then be publicly displayed at the USPTO, partly because it's a neat idea, and partly to evidence the subject matter of the patent.
This process was deprecated a while ago, but is still present in new forms, e.g., patents claiming DNA sequences must submit an appendix containing a listing of the DNA sequence. This can be absurd and pointless in practice - I've seen patent applications containing hundreds of pages of As, Cs, Ts, and Gs - but it's a nice concept, anyway.
The pushback on making this a strongly encouraged, or even required, practice for software patents is that potential infringers have an entire, working instance of the invention that they can drop into their own products. Obtaining a software patent (after two years, at a cost of $15,000, and with subsequent maintenance costs pending) is actually the easy and cheap part of the process - finding people who are using it, and trying to enforce the patent against them, is much more difficult. It requires reverse-engineering closed-source competing products. This sucks. Withholding functional code is at least one small hindrance against secret infringement.
I think the average consumer is willing to do a "subscription" on some platforms...
Exactly right. Similarly, consumers are fully willing to pay periodically for cellphones, cable/satellite TV, XM radio, and of course broadband.
The real question is whether the consumer is really getting a service or a solitary product. Is the user getting a flood of new content? Does the offering absolutely require the use of a whole lot of infrastructure? If so, then J6P will happily pony up every month for it.
If, OTOH, we're just getting the privilege of using the same crap that we used last month, then screw it. We just want to buy it once and own it forever.
This may well shape up as an interesting legal battle in 10-15 years. We might need a court ruling or legislation that distinguish products, which must be offered on a fair one-shot price basis, and services, which simply can't be.
Not only is this completely off-topic but you're also very ill informed.
Fortunately, the same can be stated about the author of this article.
UDDI, DISCO, WSDL, etc. describe web services - which, in fact, have very little to do with a software rental model. Web services are mainly a way for businesses to provide formatted data over a platform-independent HTTP channel. They are also a way to interact with the company, by using its objects, in a secure, object-oriented manner, without a lot of client/server architecture.
This technology will revolutionize business-to-business interaction. It has nothing to do with software rentals, except to the extent that businesses might want to subscribe to information services of other businesses (e.g., up-to-the-second stock tickers.)
I'm in a pretty good position to draw this conclusion: I've spent the past two months preparing for the Microsoft Certified Solution Developer exam on XML web services. So I know what it can and can't do.
Don't get me wrong - the software rental model is horrific, and that battle needs to be fought here and now. But for god's sake, let's pick the right target before unloading on it.
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- David Stein
That argument is specious, Alsee. As my law school contracts professor used to say: "That dog won't hunt."
The DMCA comprises an expansion of copyright. Its central purpose is to broaden the definition of copyright infringement - e.g., to encompass circumventing anti-piracy controls are designed (at least superficially) to enforce copyrights. If you're being charged as violating the DMCA, you're being accused of violating copyright.
In that light, "nothing in this section shall be construed to limit defenses to copyright infringement" is of course relevant. All of the traditional defenses to copyright infringement are available as defenses to the DMCA. That's the plain meaning of the words. (How those words jive with the rest of the act remains a significant issue.)
Interpreted as you suggest, yes, this clause means nothing. It would be like an anti-terrorism act stating that it didn't intend to change any defenses to domestic charges of IRS fraud. In fact, the nonsensical consequence of this interpretation is strong grounds for rejecting it.
- David Stein
The DMCA is contradictory on this point. It does state that it won't be construed to change fair use concepts. But it also states, quite clearly, that copyright measures cannot be circumvented. It's not clear which section controls. One would hope the rules of statutory construction (particularly, a bias toward non-contradictory interpretation) would favor the former - i.e., implicitly, one may break copyright enforcement measures in furtherance of fair use - but this is not at all clear.
Also: The DMCA criminalizes some activity that isn't fair use, but that must fairly be permitted. For instance, reverse-engineering for commercial purposes is not typically regarded as fair use, but has been tolerated in the interest of market competition. Lexmark comes to mind here, in its attempt to assert the DMCA against a company that reverse-engineered its printer hardware in order to produce non-Lexmark-branded (and infinitely cheaper) toner cartridges. Of course, Lexmark lost that suit, but the ruling was quite limited to the field of access/lockout codes.
- David Stein
In fact, they're trying the opposite tactic. They have essentially missed the whole MP3 player market - entering the field late, and with a product that was both indistinguishable from a dozen also-rans and rendered lame by copyright restrictions. So they are endeavoring to propagate the "repeat media sale" model to these new devices. They sell you one copy of the CD for your home computer, another copy for your car, a third for your MP3 player...
This is perhaps the greatest threat of the P2P/open-media frontier: the big media gravy train is coming to an end, as the public realizes it should only have to buy content once.
- David Stein
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- David Stein
Commando sounded amazing (and still does!) - this was one of the few games in history where the home port kicked ass compared with the arcade version (both gampelay and music were tweaked to be a lot more fun.)
And, of course, the M.U.L.E. theme song continues to haunt me in my sleep. Just one more game... I'm sure I can corner the crystite market this time...
- David Stein
You can personally choose to ignore it, but it's at your own expense. If you don't fight to keep IP laws fair you'll one day find it's illegal or too expensive to be a nerd.
I'm probably your mortal enemy in this regard - I'm a software patent attorney. (But if it's possible, I'm the good kind - I'm horrified by notions of patents on "e-Commerce" and the ISNOT operator - and I want to reform the system so that only truly new, truly useful software gets patented.)
But I completely agree with you - this issue is too important for software developers, even hobbyists (like me), to disregard. The set of rights and obligations inherent in a patent used to be this weird, insubstantial body of theoretical (imaginary) value. It's become surprisingly concrete and relevant.
The good news is that the patent process is too expensive to be used frivolously, so once we build up a sufficient store of software prior art (and, hopefully, a competent patent office examining corps), software patents will - like biotech before it - mostly be limited to fights between big companies. Let's hope history repeats itself.
- David Stein
Yup. They get us to do it - and to pay for the enforcement, out of our own tax dollars.
I wonder... Once the RIAA pays enough senators to make copyright infringement punishable by death, do you think they'll send your family a bill for the bullet?
- David Stein
The MPAA, otoh, has an enormous incentive to preserve its bloated cash-cow market. And so they will buy every senator, judge, hardware manufacturer, and code monkey they can until the system serves them again. They can throw more money at the "problem" than you can. Game over, man.
Now, I have tremendous faith that they'll fuck up their first 500 attempts to develop hardware restrictions that actually work. My concern is that the 501st will probably succeed. Because thanks to all those Britney Spears fans buying her shitty records, the MPAA can keep trying until it gets it right. It's practically a force of nature.
Our only hope is a representative government that supports its body politic, as a whole, rather than a single mega-wealthy corporation. ... So, yeah, we're fux0red.
- David Stein
First, I can't think of a more mundane and generic title. Continung this trend, the next Pixar film should be called Shoes - or maybe Toothbrushes. It's a moving story about a friendship between a floss dispenser and a tube of whitening toothpaste, and it also promotes dental hygiene!
Second - this is going to be hard - I love Pixar, and find their films to be great entertainment. But their schtick is starting to wear a little thin. We've done bugs, toys, monsters, and fish, and they've talked about doing robots. Now we're moving into consumer products. I'm curious how much longer this trend can continue, and whether or not they'll start slipping into that most humdrum of habits - the serial. Is it time for Toy Story 3 yet?
Pixar is brimming with incredible talent. That's why it will be such a shame if the public tires of seeing it applied to rather cliche genres. This is fantasy - we need new fantasy environments. Really alternate-reality stuff that veers between comic and wondrous. In the end, that's the highest calling of uber-powerful CGI art: to allow us to envision a previously unimaginable world. I think Pixar is, oddly enough, missing the boat in that regard.
- David Stein
That's a girl? Based on the severe shadows and the wicked eyebrows, I thought it was Satan.
Eh - women, spawn of evil... the difference is purely semantic, I guess. nm.
- David Stein
I'll take that compromise. Double coverage is nothing but a fencepost perch.
Since when have mathemetians and programmers called themselves "inventors"?
I doubt that the creators of engineering schematics would prefer the term "inventor" to "author." Nevertheless, a schematic is a strictly functional document - certainly some aesthetic concepts might be taken into account, but its primary purpose is solely functional.
I'll set aside for now the facts that (a) this is a really bad categorization argument, and (b) most programmers have little understanding of the commercial value of their code, so it would be better to ask their employer (who actually owns the code) about its characterization.
All softwarer is nothing more than mental steps. You do not need a computer to run software. ... Patents are for physical objects and physical processes. They were never intended to cover mental processes.
I think it's disingenuous to lump together software and mental processes. Do you anyone who's ever sat down with a pencil and paper to decrypt a 128-bit RSA-encoded message according to the patented algorithm? Or who sat down with pencil, paper, and a long printout of binary data to compress it for better transmission over a modem?
Let's look at this in a technical fashion. Any process implemented in software can also be implemented in hardware, and vice versa. You can take any patented or patentable software process and write a circuit that will perform the same process. Indeed, that's how the first true software patents were granted - they were shoehorned into a circuit or general-purpose computer and claimed as a novel device. Same result, but crowded around inconsistencies and baggage.
And then there's the practical angle: Eliminating software patents would force all inventors of truly useful software to release them only as dedicated hardware, which they could patent (along with the process.) EEs have evolved to the point where modern ROMs are undumpable and unmonitorable - the circuit boards are loaded with suicide chips and sensors, so you can't just emulate the circuit in hardware. How's that for impeding innovation? Others can't even practice the invention for the purpose of experimentation, because they can't determine how the circuit works. Do you really want to encourage a return to (gulp) hardware dongles? I don't.
- David Stein
Huh? I don't think you're understanding the history.
The court's ruling was that patent claims for algorithms could not be categorically rejected as non-statutory subject matter - i.e., as non-patentable inventions. In addition to all of the other tests of patentability (novelty, utility, non-obviousness, etc.), the algorithm also had to have at least one of two connections to the real world:
- It had to have a "real-world impact" (i.e., it controlled a machine), and/or
- It had to operate on "real-world inputs" (i.e., sensors.)
And the USPTO consistently applied those restrictions. That made sense, since the USPTO fiercely opposed the concept of software patents in the 1990s, even after the State Street Bank decision that overrode their opinions. So it's unfair to state that the USPTO construed the court opinion with overbreadth; on the contrary, it sought to limit it as much as possible.- David Stein
Correct. But that is today. Software development in twenty years will likely look very different.
Consider: None of these arguments is, well, novel - they have thirty years of dust on them. They were all made regarding biotech, too. Thirty years ago, the instigators of the uproar over biotech patents said that:
- Biotech patents would prevent normal researchers from using basic, ordinary benchtop lab practices.
- Biotech patents would basically centralize all of biotech within two or three massive companies that would no longer need to innovate.
- The USPTO could not even hope to staff its examiners with biotech experts, and therefore could not conduct a valid examination, leading to a torrent of facially invalid biotech patents for all eternity.
- Biotech patents would basically cause the end of biotech innovation. No more medical therapies; no more lab research; no more industrial biochemistry.
Fortunately, those arguments were declined. Obviously, the predicted cataclysm has not materialized. Today, our biotech industry is basically causing a golden age of medicine - we're creating far more disease cures, far faster, than ever before in history.So it's pretty simple:
- Biomedical innovation requires funding.
- Funding of early-stage biomedical innovation comes from investors.
- Investors only invest in companies that have a strong business plan.
- A strong business plan that hinges on conducting expensive research to create a new market must mention a way to gain a return on investment by securing that market for a limited time.
Hence, biotech patents. Hence, biotech innovation.Software is not markedly different. In a nutshell, I will offer the following insights:
- Software technologies and techniques that are routine and ubiquitous today will still be routine and ubiquitous tomorrow - free of patents.
- Bad software patents expire 20 years after their filing date, just as do valuable patents. Thus, even bad patents today - those that cover routine techniques - will expire and become public knowledge in a few years.
- The industry will become more selective about filing software patents. It must, since absurdities like patents on hash tables will never be useful to anyone. Even large companies cannot afford to throw away vast sums of money on patent portfolios that are not enforceable.
- By approximately 2020, we will have an incredibly well-documented record of the state of software development - both in the form of 50 years of programming journals, and in the form of all previously-filed software patent applications. The patent system will improve, as it has before.
- David SteinIf either form of protection should get canned, it's copyright. A functional set of instructions, or a work of art - which better describes software? In which context is it overwhelmingly applied?
I'll give you two other reasons for software patents over software copyright:
- Patents expire 20 years after filing. That term is locked in, and it is virtually unmovable. Copyright in America lasts up to 95 years after the life of the author, and continues to grow (thanks to a corporation-owned Congress.)
- Let's say you spend several years of your life designing a new compression algorithm, and that it is completely awesome. Now, which would you, as its inventor, prefer: to protect any use of that compression algorithm, or only to protect your particular implementation of it - i.e., your code? Someone can take your C# code, or even assembly, and re-implement it in Perl or Python or Visual BASIC or whatever, and you, the inventor of the code, have basically lost all of the commercial value of your work.
(I fully expect the responses to include: "But software wants to be free, maaaaaan! Patents are just ways that The Man oppresses us coders!" I'll address those in a separate post.)- David Stein
Well, obviously, it's not illegal under the DMCA in Canada, regardless of any exceptions.
To get to the substantive point: The DMCA broadly illegalizes the breaking of copyright protection - teaching someone how to do it, writing software to do it, using the software, whatever. The motive doesn't matter. Even if you're doing it to protect legitimate rights carved out from Betamax - most notably, creating an archival backup - it's illegal.
Of course, this is complete bullshit for the many honest people, like me, who just want to be able to listen to their 20th-century-tech audio CD through another device, or who want to back it up to prevent bit rot. And that's why we routinely ignore it for these purposes. But copyright-respecting (cripped) technology is on the horizon, and the fight against it must be waged now.
- David Stein
Good luck with that. Especially since it's illegal under the DMCA. And since future versions of Intel hardware and Microsoft software will put a hard block on your ability to do this.
Don't get me wrong - I believe that you have every right to do this, and I'm a very strong proponent of completely open media formats (which currently includes MP3, though that *might* go away.)
My point is that you're putting your trust in two companies that have already publicly stated their intentions to betray that trust in the near future.
- David Stein
Have you never seen nice shorts and a knit polo? It's possible to good, evn professional, in comfortable, warm-weather clothing.
- David Stein
25 degrees C is uncomfortably warm if you're wearing a shirt and tie, or full battle gear (suit), as is typical of my law firm and many other professional groups.
But 25 degrees C is damn perfect if you're wearing comfortable clothing, like shorts, a T-shirt, and flip-flops. By no coincidence, I'm most productive when I'm comfortable, which includes how I'm dressed.
I hope that this starts a trend back to more casual dress. We were headed there in 1999, but the shock waves of the .com bust produced a backlash to heavy, formal clothing. Hopefully we can resurrect the previous trend.
- David Stein
Absolutely. By this reasoning, gasoline if cars cost less. Although the products are used together, their prices and markets are almost completely unrelated.
In addition, many people seem to be particularly upset that they're forced to pay Microsoft enormous sums again, and again, even if they don't want to.
Correct. That is, of course, Microsoft's core business: virtually all of their strategy involves cementing the position of Windows on the desktop, so that they can charge people again for the same product every time they buy the machine. An even better example is Microsoft Office, which hasn't noticeably improved since before 2000, yet still costs $250 or so.
Let's hope that the rise of Mac OS X, Linux, Novell, and Sun as desktop competitors will finally provide a viable choice for both home and business.
Sadly, that really won't happen until there is one compatible, OS-neutral software platform. Most new commercial software is written for Windows - that's simply a fact - and it's because of (a) the network effect of such a large market, and (b) the success Microsoft has had with making Windows software development incredibly easy. Compare a nicely-fleshed-out Windows application, with automatic visual styles and Direct3D and OpenFileDialog boxes, with wonky Java applets that might run in a browser, and might just break.
So the way to break the Windows monopoly is to create one finely-honed programming platform. When the latest 3D games and business apps run just as well (or better!) on Linux as on Windows, the migration barrier will be much reduced, and people will switch in greater numbers.
- David Stein
Uh, because the patent discloses the invention with sufficient clarity to allow one of reasonable skill in the art to make and use the invention for its intended purpose without undue experimentation.
Those words - from memory, but practically verbatim - comprise one of the core requirements of a patent application. If you don't do that, your patent application is rejected. (Now, the question exists whether or not that requirement is being satisfied for the software arts. But any problems of this kind are related to a poor implementation of a sound principle, and the USPTO is working to improve that.)
In short: For any true software invention, I don't need source code to understand what's going on. I just need someone to explain the functional principle to me, and then I can go code it up in my language of choice. You have a new and more efficient hashing algorithm? Great! Tell me what it's doing differently.
If your invention is so heavily dependent on a particular implementation that one need the source code to make it work, then it's not much of an invention.
So why should source code be required? Without the soruce code, you could die, disappear, your house could burn to the ground, whatever, and the patent you have been granted will expire with no way of retrieving the source code so the technology can become public domain.
But which is harder: Reading about the functional principles of an invention and coding an implementation, vs. hashing through someone's undocumented source code to figure out what it's doing? I maintain that the latter is, on average, far more difficult. Most interesting code still gets wrapped in many layers of trivial or unrelated code; logically teasing them apart can feel like conducting brain surgery.
Here's my concern about your principle: It is commonplace and easy to implement even a very simple software concept as a convoluted, obfuscated tangle of spaghetti code. Hell, that's the whole reason anyone uses Perl. ;) This is frequently done to protect a trade secret, and sometimes to ensure the coder's job security. If we require source code to accompany software patents, software patentees have every incentive to provide code that is completely functional, but completely impenetrable by people without a lot of work.
Consequently, the poor patent examiner, already balancing the software concept against prior art against the entire contents of the MPEP, must now also strive to make sense of intentionally obfuscated code. If he complains, the patent applicant will put forth the argument that the code demonstrably works, and will assert that the examiner is just technically incompetent. The examiner will likely not be able to counter that argument, and will just allow the application.
You think the state of software patents is bad now? Wait until it's flooded with thousands of patents, undoubtedly entitled "Software process" or something similarly vague, stapled to thirty pages of intentionally bungled source code.
You see, in the meantime, we *can* take the source code and drop it into our programs.
Is that the goal of the patent system - to produce a bunch of working models that we can copy and set into motion without comprehension? In that case, why not just register the copyright for your source code? Everyone gets your source code, but you keep the rights to it - that's exactly what copyright does.
Patents are intentionally removed from a specific implementation - they focus on the underlying principle. If explained in sufficient clarity (as required), the principle can then be taken away and used in any implementation (subject to the limited-term rights of the invento
Well, there's precedent for it. The USPTO used to encourage inventors (strongly) to submit a working model of each invention with their patent application. The models would then be publicly displayed at the USPTO, partly because it's a neat idea, and partly to evidence the subject matter of the patent.
This process was deprecated a while ago, but is still present in new forms, e.g., patents claiming DNA sequences must submit an appendix containing a listing of the DNA sequence. This can be absurd and pointless in practice - I've seen patent applications containing hundreds of pages of As, Cs, Ts, and Gs - but it's a nice concept, anyway.
The pushback on making this a strongly encouraged, or even required, practice for software patents is that potential infringers have an entire, working instance of the invention that they can drop into their own products. Obtaining a software patent (after two years, at a cost of $15,000, and with subsequent maintenance costs pending) is actually the easy and cheap part of the process - finding people who are using it, and trying to enforce the patent against them, is much more difficult. It requires reverse-engineering closed-source competing products. This sucks. Withholding functional code is at least one small hindrance against secret infringement.
- David Stein
With all due respect - the most obvious question, clearly, is: "Can I use it with CounterStrike?"
- David Stein
Exactly right. Similarly, consumers are fully willing to pay periodically for cellphones, cable/satellite TV, XM radio, and of course broadband.
The real question is whether the consumer is really getting a service or a solitary product. Is the user getting a flood of new content? Does the offering absolutely require the use of a whole lot of infrastructure? If so, then J6P will happily pony up every month for it.
If, OTOH, we're just getting the privilege of using the same crap that we used last month, then screw it. We just want to buy it once and own it forever.
This may well shape up as an interesting legal battle in 10-15 years. We might need a court ruling or legislation that distinguish products, which must be offered on a fair one-shot price basis, and services, which simply can't be.
- David Stein
Fortunately, the same can be stated about the author of this article.
UDDI, DISCO, WSDL, etc. describe web services - which, in fact, have very little to do with a software rental model. Web services are mainly a way for businesses to provide formatted data over a platform-independent HTTP channel. They are also a way to interact with the company, by using its objects, in a secure, object-oriented manner, without a lot of client/server architecture.
This technology will revolutionize business-to-business interaction. It has nothing to do with software rentals, except to the extent that businesses might want to subscribe to information services of other businesses (e.g., up-to-the-second stock tickers.)
I'm in a pretty good position to draw this conclusion: I've spent the past two months preparing for the Microsoft Certified Solution Developer exam on XML web services. So I know what it can and can't do.
Don't get me wrong - the software rental model is horrific, and that battle needs to be fought here and now. But for god's sake, let's pick the right target before unloading on it.
- David Stein