SFLC against software patents
p2pnet.net news view:- I realized I hadn’t posted about Microsoft v AT&T, the US Supreme Court case that will decide whether US patents can apply to software that is copied and distributed overseas. What the Software Freedom Law Center has done is file a brief that argues not only against software patents applying to overseas uses, but argues against software patents themselves.
SFLC press release
Groklaw
Linux Watch
For most software practitioners it’s obvious that software shouldn’t be patentable, but for many lawyers and corporate executives, the thinking is very different. I remember reading In the Public Interest: The Future of Canadian Copyright Law and noticing a few times when these Canadian lawyers interpreted software differently than I would.
One of the best examples is the chapter “Coming to Terms with Copyright” by David Lametti. When discussing moral rights (Section D1, page 507) he suggested, “such rights would not apply to works such as software, which do not have identifiable link to the identity of the creator”.
What he seems to be thinking of is the very manufacturing-like practise of software creation that applies to companies like Microsoft. This type of thinking does not apply to FLOSS creation, even FLOSS creation at larger companies like IBM, Novell or RedHat. When people work for these larger FLOSS companies, you see their individual names in the publicly distributed source code files when they contribute to these projects.
Mr Lametti seems to have presumed that there is only one method of creation, distribution and funding for software, and thus didn’t take into consideration the wider variety of incentive models which exclusive rights for software must take into consideration.
As a FLOSS author, I waive my moral right of integrity because that’s required to allow for efficient peer production and peer distribution. But I retain my moral right of attribution. The most liberal and simple of FLOSS licenses such as the MIT or BSD licenses waive nearly every other exclusive right but the right of attribution, suggesting this right is one of the most critical rights that is in common between all FLOSS authors.
When discussing “Software and Multimedia Works” (Section D5, p513) Mr Lametti suggestions protecting software under copyright is erroneous in his view, and further, that software should have been protected under a patent-like regime.
This ignores the fact that software is more than just the rules that a computer obeys. In the FLOSS world, it’s quite clear that software is also a language used to express software ideas in a conversation between practitioners, in the same way that mathematics and other such tools were devised to allow for conversations between other scientific practitioners.
Under Mr Lametti’s thinking, it might be appropriate to suggest binaries alone shouldn’t be afforded copyright, but I believe it should be obvious that the human readable source code used in the very public dialogue on software seen in the FLOSS community has copyright as a perfect fit.
In the same section he goes onto economic analysis, again only considering the model used by companies such as Microsoft where software is authored by teams, copyright is held by the employer, and profit expectations are speculative for the future.
My own business model is not unique, and I contribute to larger project teams of people who work in many companies, I retain the copyright for everything I author, and I charge my customers the fixed-costs of development (no speculative future monopoly-rent-seeking).
I agree with Mr Lametti’s thinking on the term of copyright, suggesting that software should have a different term of protection than other works. I doubt any software author would write a single line of code more with having the term any longer than a fixed 20 years. The current terms of life+50 (most countries, including Canada) and life+70 (USA, Europe, etc) might as well be infinity. I don’t know of any examples of software where copyright has expired, and I doubt there will be hardware or the technical knowledge in existence by the time any software copyright does expire to make any future use of this software.
Were it not for the FLOSS movement, including people who have dedicated their software to the public domain, there would be no software commons upon which the next generation of practitioners could build.
The closest thing to Shakespeare for software practitioners is the BSD Unix source code, and even that’s been in court more than once with companies trying to claim exclusive rights over it.
Lawyers must read some of the arguments against software patents from the software practitioner community. These arguments aren’t limited to interpretation of legacy law, but the reality of the practise itself. There’s a full spectrum of of incentive structures that need to be recognized in order to protect the interests of software creators. Protecting the moral and material rights of these creators is, in theory at least, the purpose of these laws which create intangible exclusive rights.
Russell McOrmond – p2pnet contributing editor
[McOrmond is an independent author (software and non-software) who uses modern business models and licensing (Free/Libre and Open Source Software, Creative Commons). He's also the CLUE policy coordinator.]
If your Net access is blocked by government restrictions, try Psiphon from the Citizen Lab at the University of Toronto’s Munk Centre for International Studies. Go here for the official download, here for the p2pnet download, and here for details. And if you’re Chinese and you’re looking for a way to access independent Internet news sources, try Freegate, the DIT program written to help Chinese citizens circumvent web site blocking outside of China. Download it here.
p2pnet newsfeeds for your site | | rss feed: http://p2pnet.net/p2p.rss | | Mobile – http://p2pnet.net/index-wml.php
January 6th, 2007 at 7:52 pm
Here is petition which is gaining a lot steam and has only just started.
It for UK citizens only this petition against software patents.
http://petitions.pm.gov.uk/softwarepatents/
January 6th, 2007 at 7:53 pm
Here is petition which is gaining a lot steam and has only just started.
It for UK citizens only this petition against software patents.
http://petitions.pm.gov.uk/softwarepatents/