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

[microlenz(at)earthlink.net]

On 14 Jul 2003 at 18:21, John Zulauf wrote:

Date sent:      	Mon, 14 Jul 2003 18:21:26 -0600
From:           	"John Zulauf" <johnzu@ia.nsc.com>
To:             	dvd-discuss@eon.law.harvard.edu
Subject:        	Re: [dvd-discuss] Gedanken Experiment -Unix and Norton
Send reply to:  	dvd-discuss@eon.law.harvard.edu

> 
> 
> Jeme A Brelin wrote:
> 
> > 
> > Uh, software patents are allowed today and there is STILL very little
> > published source code.
> 
> yes and no.  With the USSC finding that "algorithm" are facts of nature,
> I can't think of anyone outside of the OSS movement that feel safe with
> publishing "the crown jewels".

There seems to be some confusion here about source code vs algorithms. 
To quote Niklaus Wirth "Algorithms + Data Structures = Software"
An algorithm is a set of instructions for doing something. The data structure 
is what it is done to. The software is the set of algorithms and data 
structures together that do "The Thing"

Do you think microsoft has some shazzmooo algorithms or even data structures? 
Just look at VB sometime. Not much there.The crown jewels are not the 
algorithms (which are encapsulated behind the interface) but the interfaces to 
them AND the data structures at the interface. Given a decent API specification 
do you think Microsoft would be around? The OSF would have OSF-Shutter in 
months.

> 
> > > 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?
> 
> Is this were I insert "information wants to be anthropomorphized" retort
> to the "information wants to be free" argument.  Information is one of
> the least carefully quantities throughout human history.  Perhaps this
> is because of the inherent "uncontainability" of information -- to me
> that doesn't equate to "intrinsic freedom." Think how personal privacy
> trades off against "freedom".  "Freedom of information" cannot be
> treated as absolute, but as an element traded against other in a policy
> sense.
> 

That's the whole point about information...it is uncontainable. Many societies 
have tried and have ended in bloody revolutions or warfare, or economic ruin.

The Freedom of INformation is not absolute. NOr does personal privace, trade 
secrets, military secrets or whatever come into the picture. The question is 
making up NEW secrets where none existed before for the purposes of protection 
to create monopolies.  Information in a database is just information. If a 
database wants to charge me for accessing it then they must control my access 
to it either online or via some license agreement. Not throwing a shrinkwrap in 
my face and saying "we license to you the information but you don't own this 
because you bought it" You can't license information only control the access to 
it. Rather than saying information want to be free rather it is uncontainable, 
as you point out, would have been better phrasing.


> 
> > 
> > > 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.
> 
> At the same time you do realize that your companies is (1) in the
> minority and (2) able function in this way as the software technologies
> weren't a competitive advantage of differentiator.

Some companies are reverting back to that model but M$ will never be one. It's 
control.

> 
> > 
> > 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.
> 
> Except the result of non-patenting is the "artificial scarcity" of trade
> secrets.  You get all the disadvantage of patents (others cannot use the
> algorithms) with none of the advantages 

Not entirely. Others CAN figure them out and use them They just need to do the 
REing or maybe knowing something can be done (half the battle there) they do it 
one better. (The UTSA needs sharp curtailment. The Bunner case is a good 
example. The judge should have said. SHOW me what he did was improper NOT that 
he knows a trade secret and Then you you get your preliminary injunction" The 
protection of IP is a vain exercise as practices today)

>-- disclosure, potential
> availability through licensing or cross licensing, eventual lapse into
> the PD.

Or if someone just publishes it there is goes. Actually, it already is in the 
PD since anyone can discover it or RE it before the UTSA existed. 

BTW as for Stratevarious violins....that was not a trade secret but 
craftsmanship and a remarkable wood dried out by a fungus that reduces the 
moisture content well below what it would have been had it gone through a more 
regular curing period. I read that a professor REd that about 10 yrs ago ...a 
"trade secret" discovered hundreds of years later. But do not tell me that the 
owners of Amati's feel cheated.

> 
> 
> 
> > 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.
> 
> I truly don't know how to respond to this.  Aside from the "freedom of
> association" and "freedom of speech" issues is the the Who singing "Here
> comes the new boss, same as the old process" -- we did the 60's ("And
> their kids are hippie chicks, all hypocrites") and got more than our
> share of mid-life, yuppies, and burn-outs (the ones who never recovered
> from too much "peace, love, dope").  Yeah.  Been there, done that.
> 
> Frankly, we all vote with our dollars for many of these "commercial
> interests" everyday, and unless we all going to end up on some
> self-sufficient "intentional community" they aren't going away because
> we keep feeding them.  A good leash, yes.  A return to meaningful
> anti-trust enforcement, yes.  "bringing down" -- come on.
> 
> > 
> > > 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 assumes that every listing of the algorithm would be considered an
> infringing "making".  Clearly if the algorithm is used (compiled,
> interpreted, etc.) this is a "making".  As for listing the algorithm in
> an understandable and implementable form, clearly this is a requirement
> of 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?
> 
> If you are saying that the patent application would itself infringe the
> patent... this is just silly. One cannot grant a "secret patent".  This
> is a mere straw man argument.  Rulemaking for these patents could
> certainly allow for "non-functional" (or potentially "non-functioning")
> distribution of the algorithm as described in the patent.
> 
> 
> 
> > 
> > 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.
> 
> I think this assumes facts not in evidence.
> 
> > I interpret this to mean that society has progressed beyond the point
> > where "for profit" entities are more beneficial than harmful.
> 
> As opposed to when?  For profit entities continue to be a vital element
> in our civilization -- as the encourage risk taking and experimentation
> in ways non-profit orgs and academia do not.  
> I make money at my job.  "I am a for-profit entity" (IAAFPE)
> 
> 
> 
> > There are those who choose to exploit and encourage public ignorance and
> > profit from it (and that is ALL a commercial software company does).
> 
> Okay.  I hope this is hyperbole.  Commercial software companies are
> certainly not all "ignorance predators". Some are "innovation providers"
> (providing functionality not available from our by *anyone* else ) or
> "convenience providers" (providing useful functionality for those not
> incline or capable of reinvent the wheel or building "Linux from
> Scratch".
> 
> > 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.
> 
> You have now succeeded in scaring me.
> 
> eek!
> 
> .002
>