Re: [dvd-discuss] Gedanken Experiment -Unix and Norton

[Seth Johnson <seth.johnson(at)realmeasures.dyndns.org>]

(Coming back to the discussion after wandering the wide world)


John Zulauf wrote:
> 
> Seth Johnson wrote:
> >
> > John Zulauf wrote:
> > >
> > > Seth Johnson wrote:
> > >
> > > > The application of the trade secret model is far better because it separates
> > > > private interest from exclusive rights.  "Publishing" does not simply mean
> > > > "readable" or "viewable."  It means making available to the public.
> > >
> > > Publication != "freely given" however.
> >
> > The only restriction on published information is the reproduction of
> > original expression.  I don't understand what you mean by "freely given."
> 
> Sorry.  I was confused by your phrase "making available" -- I thought
> meant fully available in the "public domain" sense.  'Publication !=
> "free given"' was shorthand for "just because I publish something
> doesn't mean I have to give it away."

The information contained in the published work is freely usable.


> > If you mean to imply that the published work is not
> > open to free use, you're wrong as far as anything besides reproduction of
> > original expression.
> 
> It's not open to "free" (as in unrestricted) use.  It is open to
> ordinary (reading and studying, etc.) and "fair" use.  The boundaries of
> that "fair" are marked by the four part test of Harper and Row v.
> Nation.
> 
> 1. the purpose and character of the use;
> 2. the nature of the copyrighted work;
> 3. the substantiality of the portion used in relation to the copyrighted
> work as a whole;
> 4. the effect on the potential market for or value of the copyrighted
> work.


You are focusing on fair use, which addresses uses of original expression. 
I am referring to the information contained within original expression,
which is completely open to free use.  This has nothing to do with what the
author wants to allow you to do with it or not, and is true independently of
whether the work is "freely given," a phrase that puts the emphasis on the
wrong place.  Authors don't control the use of information in their
published works -- only the original expression (except vis a vis the DMCA).


> > If you mean things won't be given for free, it's not
> > relevant to the point that publishing means making information available
> > such that it can be used freely, save for reproduction of original
> > expression.
> 
> You are making my point.  If the copyright holder cannot prevent
> extraction and reimplementation of a "critical invention" or
> "differentiating technology" exposed in published code, he/she/they will
> strongly oppose any requirement to publish that code.  Thus without
> means to prevent this, non-free source code will not be broadly publish
> and we are back to the list of horribles we have today.  The only means
> to prevent the "making" of a software invention is by a patent.

Once again, nothing has changed as far as what governs the choice to keep a
discovery a secret or to publish it.  There has only arisen an egregious
desire to lay inappropriate claims on digital tools and new media -- and
code.  Code is simply the expression of algorithms.


> BTW. This the second time you have used "reproduction of original
> expression" as the only exclusive right.  This is clearly not true.
> Translations (from english to german or C++ to C# or Java or pig-latin
> ...) are not reproductions of the "original" expression, yet are within
> the exclusive rights of the copyright holders.  Derivative works (such
> as adding a few methods to some publishing object code) certainly are.
> My point is that publication withholds all these rights still.

Exclusive rights only apply to expression, the originality evidenced in the
way information is conveyed.  There are a number of such exclusive rights. 
It isn't hard to understand translations this way -- they are explicitly a
new version of the original expression, and the author has been given the
exclusive right to control that.  While they possess originality as
translations, they are designed to be a re-presentation of the original
expression embodied in the original work.  This is different from
reproducing freely the information contained within the original work, in
ways that do not convey the original expression.


> > You can't support your point with the false notion that the
> > economic incentive has priority over the purposes of the exclusive rights
> > clause, or the intrinsic nature of information as such.
> >
> > > As an example, a copy of the
> > > source (or the right to one) could accompany each binary copy of the
> > > application and fulfill a publication requirement.  However, if
> > > algorithm can only protected as a trade secret
> > >
> > > (a) The secret is never shared (and never falls into the public domain)
> > > and potentially lost (c.f. the Stradivari (sp?) brothers and their
> > > irreproducible violins)
> > >
> > > (b) a source publication requirement will never be accepted by software
> > > companies
> > >
> > > (a) and (b) tending to be antithetical to "promote progress" I'm not too
> > > fond of them.
> >
> > If you want to incentivize disclosure, figure out what might encourage that
> > without violating the intrinsic freedom of information as such.  It doesn't
> > follow that software should be patented.
> 
> I don't see any other options to encourage disclosure.  Having written
> software for many years, I cannot believe that anything short of patent,
> or patent like protections of key algorithms would incentivise
> publication of company source code.

But so what?  If code isn't patented, then people will (and can without
fear) freely write their own.  The reason the company doesn't publish the
code is the same reason anybody chooses not to publish something.

> Politically, mandated publication is a non-starter.

I really don't get why you keep bringing this up.  It's one thing to wrap
yourself in the desire to make source available, but to use that as a
rationale for patenting code is just perverse.

You appear bent on rationalizing having private interest take priority over
the public interest purposes of exclusive rights.


> The populace doesn't understand it and a broad
> coalition of commercial interests would violently oppose it.  The only
> acceptable (to non-free software developer) compromise would include
> protection for the software inventions implemented within the source.
> 
> If you want in incentivise non patenting (or freely licensed patents) by
> some sort of tax credit, deduction or the like go ahead an propose.  But
> without first getting to a publication mandate that would be acceptable
> politically, you won't have anything to work with in the first place.


Huh?  People publish code!  One of the chief things that may thwart that is
patenting code.  Who needs a mandate?  It seems to me that you've just
gotten heady with information technology and have acquired a desire to make
a business model that disregards reality.

> > Overextending exclusive rights such that you restrict the free use of
> > information as such is an expression of allowing the private interest to
> > overtake the public interest in exclusive rights policy -- not just the
> > "promotion of progress," but fundamental rights.
> 
> How is extending patents to software invention any expansion
> (philosophically) of the current policy of patents for tangible
> inventions?  Unless your argument is that we should have no patents, the
> above paragraph seems highly exaggerated.

How so?  The only problem here is your private wish to lay claim to
algorithms expressed in code, for your private purposes.


> > Nothing has changed as far as what governs the choice to keep a discovery a
> > secret or to publish it.  There has only arisen an egregious desire to lay
> > inappropriate claims on new media and digital tools.
> 
> One important thing has changed.  One of the most important elements of
> "science and the useful arts" (algorithmic development) currently has no
> means but trade secret to protect it.  Thus the decision whether to
> publish is a simple one for a "for profit" entity.  Publish and lose
> economic advantage or hold secret and keep that advantage.  Without
> protections for this class of inventors, we go back to the "bad old
> days" before patents when all there were was trade secrets, without
> publication of useful technologies.


LOL.  People don't need to require code to be published by private
interests.  It's logic, dude.  People will think and record their thoughts
in code and solve their problems perfectly fine.  We wanted inventions, we
wanted published books with scientific knowledge and fiction and stuff.  We
gave exclusive rights for that.  We don't want bottled up logic in exchange
for "publication."

Seth Johnson

-- 

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I reserve no rights restricting copying, modification or distribution of
this incidentally recorded communication.  Original authorship should be
attributed reasonably, but only so far as such an expectation might hold for
usual practice in ordinary social discourse to which one holds no claim of
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