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

[Jeme A Brelin <jeme(at)brelin.net>]

On Mon, 14 Jul 2003, John Zulauf wrote:
> 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.
>
> QED.

Uh, software patents are allowed today and there is STILL very little
published source code.

> > 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.
[snip]
> > 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.

So the ONLY option to encourage disclosure is a further violation of the
intrinsic freedom of information?  Is that really a reasonable trade in
your mind?

> 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.

I worked for years for a fiber optic carrier as a software engineer.  Our
"incentive" for publishing source code was the thousands of lines of code
we received from others.  We were enriching a pool from which we draw.

I understand that the current social model is merely a model of economics
and scarcity and has NO mechanisms for regulating "externalities" and
systems of abundance, but that is a good reason for moving beyond the
current model, not for reducing the abundance of information into the
artificial scarcity of patent.

> Politically, mandated publication is a non-starter.  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.

Which is worse: the loss of freedom of information a software patent would
inflict on the populace or the loss of potential progress of closed source
software?

Me, I'd argue that they're both evil and our focus should be on bringing
down this supposed "broad coalition of commercial interests" and making
the world a truly better place.

> How is extending patents to software invention any expansion
> (philosophically) of the current policy of patents for tangible
> inventions?

The difference is HUGE!  I think you're failing to understand exactly what
a patent restricts and exactly how that conflicts with patents on
non-tangibles.

A patent restricts not only the use, but the recreation and distribution
of the patented invention.  This exclusive right (to the inventor -- or,
in our modern, fucked-up world, the "patent holder") is counterbalanced
with the PUBLIC DOMAIN publication of the patent itself with a complete
description of that which is patented for all to enjoy, study, and share.

A patent on software would restrict the patent office itself from
redistributing or recreating the piece of code patented and restrict
members of the public from sharing the patent itself.

You would have to develop some new kind of patent that wasn't published by
the patent office.  And if it's not published by the patent office, what
is the trade with the public for the exclusive rights of the inventor?

With an algorithm, there is NO DIFFERENCE between the description and the
invention.  No matter what pseudocode you use for describing the algorithm
succinctly enough to satisfy patent requirements, somebody can write a
pseudocode interpreter and <VIOLA!> the description is an implementation
and distributing the patent application itself becomes prohibited by
patent law.

> 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.

I interpret this to mean that society has progressed beyond the point
where "for profit" entities are more beneficial than harmful.

> 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.

The problem is that "information economy" (as the term is used in the
press) is an oxymoron.  Information is abundant and there is no scarcity
to economize.

There are those who choose to exploit and encourage public ignorance and
profit from it (and that is ALL a commercial software company does).
Those people are enemies of society and should not be granted special
protection for their practices.  Instead, their practices should be
disincentivized and perhaps even punished.

J.
-- 
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     Jeme A Brelin
    jeme@brelin.net
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