Free?

[Steven Schveighoffer]

On Wed, 26 Oct 2011 15:28:21 -0400, Kagamin <spam at here.lot> wrote:

> Steven Schveighoffer Wrote:
>
>> patents exist to give an *incentive* to give away trade secrets that  
>> would
>> otherwise die with the inventor.  The idea is, if you patent something,
>> you enjoy a period of monopoly, where you can profit from the fruits of
>> your invention.
>
> I think, this can work for software the same way.

You can profit from the fruits of your invention *without* patents.  You  
can with machines as well, but software has the added bonus that copyright  
protects your IP.

But it's much harder to reverse engineer how someone built a machine than  
it is to reverse engineer how software is built.  The secrets can truly  
die with the inventor, as opposed to software -- regardless of the final  
binary format, it's always possible to get back to source code.  And  
thanks to copyright law, that source code is a derivative work, you can't  
use it unless you license it from the originator.

>> Add that to the fact that software
>> patents are *rarely* beneficial to the community.
>
> Does the community want benefits at the expense of the inventor?

The *point* of patents is to benefit the community.  The price society  
pays to the inventor is granting a monopoly.  I'd argue that a 17-year  
monopoly on software technology and algorithms is too high a price to pay  
for knowing a "secret" you can't use until it's very obsolete.  17 years  
ago was 1994, Windows 3.1 was all the rage.  Do you really think society  
is now going to benefit from using the patented technologies from then?   
When the LZW patent expired, it was a mere amusing footnote, as we had all  
moved on to better compression technologies long before then.

>> They are mostly used as
>> weapons to stifle innovation from others.  In essence, software patents
>> have had an *opposite* effect on the industry compared to something like
>> building cars.
>
> Let's look at the H264 technology. Would it exist in the first place if  
> its creators had no chance to patent it?

What if is not a fair game.  It's impossible for me to say because I did  
not invent it.  But I believe most people who come up with ideas for  
software are not in it for the patents.  Even in the company I worked for  
which got several software patents, they were an afterthought -- Software  
is invented to *solve a problem* which needs to be solved whether it can  
be patented or not.  Did the inventors of H.264 do it for the patents?   
Maybe.  But I firmly believe if software wasn't patentable, we would have  
equivalent video streams today (maybe even better than what we have),  
because it *solves a problem*.

> Everyone benefit from H264. They charge corporations for patent  
> application, corporations sell quality tools - everyone benefit. MPEG LA  
> (patent holder) said end users won't be charged for viewing H264 video  
> and they allow patent application without fees by free GPL-licensed x264  
> encoder and free LGPL-licensed libavcodec decoder - opensource benefits,  
> end users benefit. I have a vague impression GPL was a requirement: MPEG  
> LA would not allow patent application by boost-licensed code: that would  
> mean total loss of income. No one would benefit from boost license in  
> this case. GPL *wins* everything here with regards to benefit for open  
> source, benefit for users and benefit for professional commercial users.

This is a strawman -- GPL is not required by patent law to be licensed at  
no cost for software patents.  The inventors of H.264 have chosen this  
route, so good for them.  But it is not a benefit of GPL or a strike  
against boost, it's just what they chose.

>> >> 3. It is a very slippery slope to go down.  Software is a purely
>> >> *abstract* thing, it's not a machine.
>> >
>> > Software is a machine: concrete thing doing concrete job. Patent  
>> doesn't
>> > protect the machine itself, it protects concrete design work put into
>> > it. Design is a high-profile work, a good design has a good chance to  
>> be
>> > more expensive than the actual implementation. So it's perfectly valid
>> > to claim ownership for a design work and charge fees for it.
>>
>> And why wouldn't you be able to do this without patents?  Again,  
>> copyright
>> already covers software.  Plenty of software companies have large  
>> amounts
>> of IP and are successful without having any software patents.
>
> I'm afraid, it's useless to copyright a design: implementation is not a  
> copy so you can't charge for it.

You cannot copyright a design.  You can copyright implementation.  And if  
you don't make the design public, people have to spend vast amounts of  
time and effort to just *figure out* your design, then they have to write  
their own implementation (which is not cheap).  Meanwhile, you have  
improved your design to something better and already sold thousands or  
millions of copies, sucking up all the market share.

Even if you share your design, people still have to create their  
implementation, which can take years.

>> >> It can be produced en mass with near-zero cost.
>> >
>> > Dead software is seen as unusable. So - no, to produce software you  
>> need
>> > continuous maintenance and development which is as expensive as any
>> > other labor.
>>
>> What I mean is, with a traditional machine, there is a cost to  
>> recreating
>> the machine.  Such manufacturing requires up-front investment that can
>> possibly outweigh the cost of implementing the design.  Patents protect
>> the entity putting their product out there from having a larger company
>> who can throw money around beat you using your idea.
>
> The same is for software world. A program may require quite a large  
> investment before it could be made usable. Let's consider D: who would  
> get quality implementation first - Digital Mars or Microsoft? If DM  
> doesn't patent D, it will sell *nothing*.

I think if Microsoft decided to implement D, Walter would be the first one  
jumping for joy :)

> Even if DM manages to get some market share, it won't survive  
> competition and eventually lose. IE lost its market share because there  
> was more effort put into Firefox than IE.

DMC is still being sold AFAIK.  There is always a market for cheaper  
software, or a more agile software company.

One might pay for DMD if one gets specific support.  For example, if I  
wanted to buy a D compiler for ARM, would Microsoft be willing to  
implement it for a fee?  Would they even respond to my request?

>> Maintenance costs are not part of distribution, they are part of
>> development.  Of course maintenance is required, but maintenance does  
>> not
>> hinder you from making a profit like manufacturing ramp-up does.
>
> Needs for investments may be slightly different, but effectively there's  
> no difference: software project needs continuous investment of resources  
> or it dies.

But why is that?  Shouldn't patents fix that "problem?" Because with a  
patent, you have essentially a monopoly.  How can anyone compete with your  
poorly maintained software?

The real answer is, patents *don't help* with maintenance costs.  You  
can't lallygag around not innovating on your software because someone else  
will find a way to do the same thing without your patents.  All software  
patents do is create a barrier to innovation, and act as weapons against  
other patent-holding firms.

Note, Google agrees with me:  
http://articles.timesofindia.indiatimes.com/2011-07-26/internet/29815846_1_nortel-patents-software-patents-patent-suits

>> However, working software can be written by one guy in his apartment in  
>> a
>> couple weeks.  He's not going to do patent searches when it costs him  
>> just
>> 2 weeks time to create the software.  Here, the patent system is just
>> getting in the way of innovation.  It's having the opposite effect by
>> instilling fear in anyone writing software that some patent-holding
>> company is going to squash him out of business.
>
> I suppose trivial patents are also a problem for physical industry as  
> the wheel patent shows.

The wheel patent is a test of a poorly designed patent system (as the  
article indicates).  It is not representative of most patent systems.

See this quote from your linked article:

===========
Keogh, who is a freelance patent lawyer himself, says that he applied for  
the patent in order to test this new class of new patents. He says that  
innovation patents are not examined in detail by the Australian patent  
office.

"The patent office would be required to issue a patent for everything," he  
told The Age newspaper. "All they're doing is putting a rubber stamp on  
it."
===========

Note that this is not a trivial granted patent because of a flawed review  
process -- THERE IS NO REVIEW PROCESS, ALL PATENTS ARE GRANTED!  This is  
not a fair comparison of well-established patent systems.

>
>> When was the last time you did anything with a patented software
>> technology except *avoid it like the plague*?
>
> I would like to avoid H264 but unfortunately I can't.

Right, and if software patents did not exist, the web would have  
standardized on some other video codec, which would be freely available by  
now.

>> http://www.newscientist.com/article/dn965-wheel-patented-in-australia.html
>>
>> I don't get your argument there, that Australia has a lousy patent
>> system?  That Australian "innovation patents" are indefensible? How is
>> this relevant?
>
> They understand software as good as physical technologies.

Again, not a valid comparison.

-STeve