Free?

[Steven Schveighoffer]

On Wed, 26 Oct 2011 19:18:14 -0400, Chante <udontspamme at never.will.u>  
wrote:

>
> "Steven Schveighoffer" <schveiguy at yahoo.com> wrote in message
> news:op.v3yn2di8eav7ka at localhost.localdomain...
>
>>>> 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?
>
> One can: trade secrets. But a lot of times, techniques cannot be hidden
> away, for just releasing a product may divulge the "secret", so something
> more is needed: patent.

If you don't "divulge" the secret, then you don't sell anything.  Note  
that the secret is already difficult to reproduce, no patents necessary,  
because it's not in source form, and one cannot simply duplicate the code,  
you have to rewrite it in your own code.  Just knowing the secret isn't  
enough.  Patents are needed because you cannot copyright machines.   
Copyright is actually a better protection, because it can be extended over  
100 years past the lifetime of the author (I question the need for this  
time length too).

People sell books, and have no problem doing so without patents, because a  
book is hard to reproduce.  But one can always read a good book and use  
the same "design" (i.e. plot elements, sequence of story, etc.) to write  
their own book.  And it doesn't necessarily hurt the original author.

>
>> Again, copyright  already covers software.
>
> While it's probably not enough or even the correct thing in the first
> place, is "software" copyrightable or source code, or both separately? It
> seems that copyright has appropriateness for software, but is useless as
> protection of the software designs as represented by source code.

Both are copyrightable.  Source code is written words, binary code is a  
direct translation.

If source code is equivalent to a book, then the binary code is equivalent  
to a translation to a different language of the same book.  Both are  
covered under the original author's copyright.

>>  Plenty of software companies have large amounts  of IP and are
>> successful without having any software patents.
>
> Are you suggesting that there MUST be only ONE ("one and only") way?
> Great then, let's make it so there is only ONE software too. Problem
> solved, eh?

I'm not really sure what you are saying here...

>
>>
>>>
>>>> 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.  In software, since  the software is protected by copyright,
>> the competition must build their  own version of your software ideas
>> first, and the distribution is  relatively insignificant.  In other
>> words, once you release your idea to  the world, it can be sold and
>> installed for millions in a matter of days,  giving you the lion share
>> of the market.
>
> Seems like incentive to get into Engineering, huh. Those who want to "win
> big" and expend no effort should stick to buying lottery tickets (and
> stop preying upon others). Keeping things away from the sleazy, grimey
> fingers of those who want to profit from someone else's labor or get
> something for nothing, is a good thing.

If nobody was able to use anyone else's ideas, where would we be today?   
You may misunderstand my point of view.  I'm all *for* IP protection, just  
not *monopoly* protection where it is not needed.  The US patent system as  
it exists today is not a good fit for protecting software.  It does not  
achieve the goals that the patent system was created for.

Have you heard of patent trolls?  These are firms that write no software,  
yet they file for or acquire software patents in the hopes that some day  
someone will write covered software and they can collect royalties.  How  
is that not "profiting from someone else's labor"?

For example:  
http://www.guardian.co.uk/technology/2011/jul/22/angry-birds-maker-rovio-sued-by-lodsys

>
>>>> 4. Unlike a physical entity, it is very likely a simple individual,
>>>> working on his own time with his own ideas, can create software that
>>>> inadvertently violates a "patent" with low cost.
>>>
>>> I don't see how this doesn't apply to physical machines.
>>
>> When you are talking about patents for a machine or physical entity,
>> there  is a large investment and cost in just designing the item,
>
> How many man years are in the average commercially offered software
> product?

And how many man years would it take for someone to reproduce it?  Again,  
the patent system covered IP that was not copyrightable.  Things that are  
copyrightable are hard to reproduce.

>
>> or the means to  manufacture it.  It's less likely that a simple
>> individual has the capital  necessary to create it, and if he does, or
>> can raise it, a patent search  is usually done to avoid complications.
>> He might also look at expired  patents to get ideas on how to do
>> things.
>>
>> However, working software can be written by one guy in his apartment in
>> a  couple weeks.
>
> "The quick hack" is hardly "mainstream commercial software product"? Why
> bring up special cases? Why imply that a special case represents the
> whole realm?

Because it's the quick hacks that infringe on patents which are affected.   
Large companies who have libraries of patents don't care about violating  
other company patents, because there is mutually assured destruction.

Essentially, the quick hack does well, it blossoms into a good piece of  
complex and useful software.  The developer creates a company, hires  
developers, marketing, etc.  Gets big enough, and then some competitor  
decides they are too big and sues to put them out of business.  Not having  
any patents for software, the developer cannot counter-sue, and goes out  
of business.

>
>>  He's not going to do patent searches when it costs him just  2 weeks
>> time to create the software.
>
> Assumption may be made that because a patent pre-exists, that someone
> else cannot independently create the same thing, which of course is
> possible and likely. Ideally, all patents would be kept a secret so that
> those independently developed creations could have a life also, instead
> of just those of  "the chosen ones". Not allowing software patents would
> seem to "level the playing field" for all and cut out useless
> administration tasks.
>
> Hmm, no it wouldn't: big money would feed off of the inventions of the
> little guy.

In fact, it's the exact opposite.  Smaller software companies usually win  
because they are more agile and they charge less.  If you really think Big  
Money would feed off the little guy, why do so many software giants oppose  
eliminating or lessening software patents?  Do you think they are not as  
wise as you?

> That's where the consumer fits in though: don't buy from the
> undeserving, and identify them as the predators they are. That may be the
> key: render power/money-as-power, useless as a strategy.

I'll buy from whomever makes the best product.  If you make a good  
product, you deserve to be paid for it.  Problem is, monopolies usually  
don't make a good product, because lack of competition hinders advancement.

> Something to
> think about next time you buy from someone who has more than you, huh.

I don't fault people for being successful.  There is no need to punish  
someone because you are jealous of their wealth, you have the same  
opportunities (at least in the US).

>> Here, the patent system is just  getting in the way of innovation.
>
> The patent system is justified in the name of "incentive", but are
> patents in reality, a crime against humanity?
>
> Patents should, perhaps, be to protect only what cannot be kept a secret.
> "Incentive" shouldn't even be part of the equation. "Incentive" is
> "prodding" at best, "imposition" at worst (where the "crime against
> humanity reference above came from).

No, you misunderstand the position.  Patents are necessary to protect  
things that are not *already* protected by copyright.  Copyright is much  
better protection when it is possible because it's very very difficult to  
duplicate a copyrighted work.  Without patents, I feel innovation would  
not have been as rapid for most industries.  Software is not one of them.

>> 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.
>
> It does do that, yes.
>
>>
>> When was the last time you did anything with a patented software
>> technology except *avoid it like the plague*?
>
> Never looked at any, but how many do I know of inadvertently because they
> weren't kept a secret? Where are all the warning signs on information
> describing patented things? They should have warnings just like
> cigarettes (yet another cigarette analogy... Cigarettes and information
> about patented things: things that may be hazardous or dangerous).
>
>>
>>> How to improve patent system is another question.
>
> Can't be fixed and the only solution is to eliminate it?

Or limit them.  Change the term to 2 years, and you will see a lot less  
issue.  17 years is about 8 generations in the software industry.  Think  
of what software was like 17 years ago.

>> GPL3 can actually play
>>> some role here: there's no mercantile reason to restrict use of a
>>> patented technology in a GPL3 software.
>>
>> IMO, there's no reason to ever use any form of GPL anymore.  It's work
>> is  done.
>
> So now it's supposed to be credited with something and people should bow
> to it? What is that something? That communism doesn't work in practice?

It's accomplishment was to enforce open-source software in spite of the  
corporate negative view of open source software.  Essentially, it said "if  
you want our services, you have to play nice."  But now, we have much  
better open-source licenses, and a whole ecosystem built around open  
source.  Businesses have been embracing open-source software, and  
understanding why it works, their minds have been changed.  It's proven to  
work, and it's proven to work better in some cases than closed-source.   
But is it still necessary to keep the viral nature of GPL?

An interesting article on this from Eric S. Raymond:  
http://www.osnews.com/story/21192/ESR_GPL_No_Longer_Needed

-Steve