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Open Source Patents

How IP Law Helps FOSS Communities 98

Posted by samzenpus from the strange-bedfellows dept.
dp619 writes "Fighting against software patents (New Zealand has banned them) tends to blind FOSS communities to aspects of IP law that actually serve them well. While certainly not perfect, patent, copyright, trademark, and trade secret law each has something to offer FOSS communities. Penn State law professor Clark Asay wrote a guest post for the Outercurve Foundation briefly describing some of the ways in IP law can help open source developers."
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How IP Law Helps FOSS Communities More

How IP Law Helps FOSS Communities

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  • missing the point (Score:3, Insightful)

    by Anonymous Coward on Wednesday September 11, 2013 @07:25PM (#44824819)

    Open source isn't supposed to help developers. It's supposed to help USERS.

    • Re: (Score:2, Insightful)

      by Anonymous Coward

      Not really. The "Users" in RMS's time WERE developers of some ability. Even when ERS took up the Open Source banner over Free Software, he was looking at it as a Developer.

      People who are strictly users don't really care. This is how the UNIX vendors, Microsoft and Apple were able to dominate their respective fields for so long. It was only people who wanted to develop extensions of closed software that Open || Free vs closed became an issue.

      • "Not really. The "Users" in RMS's time WERE developers of some ability"

        Open source would ENORMOUSLY benefit PC gaming. In fact the few games that were open sourced have all had amazing work done to them. Who cares if only a small subset of the gaming community/fans have the potential to fix/work on the code? That's true of anything requiring serious effort. I can only imagine where we'd be if it was required by law to open source all games. So many classic games would not have to have 'gangrene' code.

      • Re: (Score:2, Insightful)

        by tlhIngan ( 30335 )

        Not really. The "Users" in RMS's time WERE developers of some ability. Even when ERS took up the Open Source banner over Free Software, he was looking at it as a Developer.

        People who are strictly users don't really care. This is how the UNIX vendors, Microsoft and Apple were able to dominate their respective fields for so long. It was only people who wanted to develop extensions of closed software that Open || Free vs closed became an issue.

        Back in the days, computer users were technically proficient out of

        • Thing is, though, as a tool, it should assist the user in helping them do what they want,

          Yup. Do what the *end users want*.
          The tool should *not work against them*.
          Not do what *the makers decided to do*.

          It should do what the end users want, even if the end user want to do something weird.
          I should not be served a DCMA because I use a hammer as a paper weight instead of using it for nailing.
          If I want to pry appart two pieces stuck together, I can use a screw driver. I won't be required to buy an extra "pro business deluxe" license to acquire a small chisel because screw drivers are only for screws

          • Also, software patents (and in general, patents on anything not physical, like "methods") make no sense at all.

            Patents did make sense for industrial inventions.
            It makes sense because physical objects take resources to create, they're expensive.
            Idea are cheap: they are mostly free. It's the implementation that's challenging.

            Back to the car method:
            - If I'm the inventor of cars, I won't be able to create a prototype. I would need materials, I would need physical experimentation, etc. To invent cars, I would ne

      • People who are strictly users don't really know the difference.

        That's what you should have said. Even the least caring users are directly affected by what's "under the hood" even if they never bother to open it. Your examples are not exactly convincing either:

        Microsoft ... able to dominate

        Mostly before Free Software gained momentum. Look what is happening to them now.

        Apple ... able to dominate

        They kind of stagnated until Jobs came back with a copy of Free BSD...

      • Yes and no. The idea of free software is that users and developers are ultimately the same. If you encounter a bug as a user or need some feature, you can fix it on your own, or, if you don't know how to do that, you may send the source to some grey-bearded friend who will patch it for you. That's the idea. It means that users are informed and encouraged to learn about the technology they use and hack and adjust it to their like, rather than being forced to use a weird blackbox with paid upgrades every few

        • It means that users are informed and encouraged to learn about the technology they use and hack and adjust it to their like, rather than being forced to use a weird blackbox with paid upgrades every few months.

          That's a disingenuous comparison, in fact I can't think of any software at all for which I've done paid upgrades 'every few months' so what specifically are you referring to?

          Even with open source applications like GIMP I would still rather use my copy of Photoshop CS2 than go to all the work to make GIMP a viable replacement. On the other hand Blender actually is in some real cases a viable replacements for its closed-source competitors. To win over users free software has to be better, not just cheaper and

    • It can help both. Most early open source (before the term was invented) was libraries intended for use by other programmers. The whole rational behind the GPL is to preserve the right of the user to modify the code, thus the user is also a programmer.

      • The whole rational behind the GPL is to preserve the right of the user to modify the code, thus the user is also a programmer.

        But in the incredibly vast majority of cases the user is not - and doesn't want to be - a programmer.

        • I was talking about the rationale to create the GPL, that implies when it was first created and not the state that exists today. When the GPL was first created it was for software primarily intended for developers. Initially this evolved from the license first used with GNU Emacs, but then when formalized as a "license as subroutine" it was applied to other GNU programs which were primarily GCC and other Unix tools replacements.

          Most of the clauses in the GPL are there precisely to allow the end user to mo

          • I was talking about the rationale to create the GPL, that implies when it was first created and not the state that exists today.

            I understand, my point was that the reason users don't really care about open source is because most users aren't programmers and to a non-programmer user it really makes no difference, sure they could pay somebody to add features for them but the reality is that most of the time it's only businesses that do that. Open source needs to provide a tangible benefit to non-programmer users for them to care about it.

    • Re: (Score:2)

      by msobkow ( 48369 )

      Says you.

      I share my code because I want to help developers with the tools I work on, not because I have some altruistic, high-minded goals about helping users.

      Different projects have different goals. The fact that people who would download my tools could be called "users" of them doesn't make them any less developers. To make broad, sweeping statements about who should benefit tries to pigeonhole the mind of the developers of open source projects, and that is a fool's game, because everyone has their

    • In Open Source, there is no clear boundary between developers and users. This is actually a benefit of open source, any user could be a developer.

  • New Zealand didn't ban software patents... (Score:4, Informative)

    by drussell ( 132373 ) on Wednesday September 11, 2013 @07:28PM (#44824831)

    They basically just banned adding "on a computer", etc. to a patent automatically becoming a new patentable "invention".

    • Re:New Zealand didn't ban software patents... (Score:5, Informative)

      by Nuke Bloodaxe ( 582098 ) on Wednesday September 11, 2013 @09:29PM (#44825665) Homepage

      *sigh* I am in New Zealand, and yes I have read and understood the legislation. For full disclosure I am also an Associate Member of the IITP, one of the groups who pushed hard to get this mess sorted out.

      Most people skip the most important line which reads:

      "A computer program is not a patentable invention." Section 15, part 3A: http://www.legislation.govt.nz/bill/government/2008/0235/latest/whole.html?search=sw_096be8ed8054d616_computer+program_25_se&p=1#DLM1419225 [legislation.govt.nz]

      Now, is that unclear to anyone?

      • Section 15, part 3A:

        I stand corrected.

        Mod that link up.

      • You're linking to the 2008 version. GP accurately described the version that was actually passed.

        The final version even included examples. It says that on one hand taking an old invention and implementing it in software doesn't make it new, on the other hand a new invention that happens to be built in C++ is a new invention. In other words, whether it's software, hardware, firmware, or dinnerware doesn't effect patentability.
        Newness controls.

    • Basically I'm not anti-patent, but software patents just strike me as completely wrong. Mostly because the overwhelming majority of them are crap, either overly broad idea obvious to anyone who has thought about the problem, or ideas that have been done previously by someone who didn't think to patent it (or couldn't afford the expense of patenting).

      But overall patents still have a chance of succeeding at their original goal: provide a limited monopoly in exchange for disclosing your new invention. Note t

      • I wish I had mod points. You've thought things through and offered solutions, like shorter patent terms.

        I wholeheartedly agree, a lot of bad patents, mostly overbroad ones or non-novel ones have been granted. That doesn't mean that a specific patent on a legitimately new invention shouldn't be issued just because the inventor built the invention on an SSD rather than discrete transistors. It means USPTO needs to stop issuing patents on things that aren't new, are obvious, or are too broad - all of which

  • Ain't that a surprise.. not.. (Score:5, Insightful)

    by Anonymous Coward on Wednesday September 11, 2013 @07:30PM (#44824837)
    A man from foundation, which has affiliation with Microsoft, telling devs how FOSS can benefit from IP law. I see these words more like "come to the dark side, play our game...". How about abandoning stuff like software patents and we all benefit?

    • Re:Ain't that a surprise.. not.. (Score:4, Insightful)

      by AHuxley ( 892839 ) on Wednesday September 11, 2013 @08:02PM (#44825045) Journal
      Expect to see a lot more efforts like that after the NZ changes.
      From sockpuppets, astroturfing to huge reports and fancy foundations ... the public has to be corrected on the NZ legal story.

      • NZ banned software patents the same way they're banned in Europe i.e Not really.

        Meantime we see patent lawsuits going to places like UK and Germany because they give judgements and injunctions even faster than rocket dockets like East Texas. See Motorola vs. Microsoft on H.264 patents on Windows 7 for example, or Apple vs. Samsung/HTC etc.

        If those are not software patents then what are?

        http://allthingsd.com/20120502/german-court-backs-motorolas-injunction-against-microsoft/ [allthingsd.com]

        • Re: (Score:3)

          by Hairy1 ( 180056 )

          No - really - we did. Not sure if this is simply ignorance or wilful deception, but Software Patents are toast in New Zealand.

          Now it may be true that you can still have embedded software which is part of a larger hardware system, but in terms of getting patents on software that runs on general purpose computers - they are most certainly not going to be granted.

          Of course this does not invalidate existing patents, and we are yet to see any test cases that will better define the edge cases.

    • Re: (Score:3, Interesting)

      by recoiledsnake ( 879048 )

      Outercurve's president seems to be the Apache Software Foundation's cofounder though.

      Jim Jagielski, a co-founder of the Apache Software Foundation; a director of the Open Source Initiative; and currently a consulting software engineer for Linux giant Red Hat is now president of the Microsoft-sponsored, open-source friendly Outercurve Foundation's Board of Directors.

      http://www.zdnet.com/microsoft-sponsored-outercurve-foundation-turns-to-apache-for-leadership-7000017596/ [zdnet.com]

    • Re: (Score:3)

      by Yvanhoe ( 564877 )
      Understanding the system, using it, subverting it, is totally fine. But some people will always confuse "having a use for something" with "loving this system".

      IP laws are despicable, costly to mankind, dangerous for research and harmful for the economy. I am still making business plans that rely on these bad rules of the game, just like I would include corruption in my plans if it was unavoidable in my country.

      Yes, rethinking copyright laws would force us to rethink all the open source licences. We would

  • not a good sell (Score:4, Insightful)

    by king neckbeard ( 1801738 ) on Wednesday September 11, 2013 @08:03PM (#44825051)
    He doesn't sell it very well. He mentions the things that each portion of law DOESN'T do as an advantage. However, said thing is often done by another portion of the law, and without those laws, FOSS communities can do anything they wanted. The closest to an actual advantage listed is the DMCA's safe harbor, which is probably less than we would have had received had a court ruled on the issue. He has somewhat of a point about trademark, but it's a mixed bag, and far from the best vehicle for source designation in its current form. All in all, though this jackass demosntrates perfect why GNU considers "Intellectual Property" a word to avoid. [gnu.org]

    • Re: (Score:2)

      by AHuxley ( 892839 )
      Some just want to be fellow travellers with a subtle message about Intellectual Property (IP) laws.
      Some efforts will be long term to lure skilled coders away to projects that dont have anti DRM clauses.
      Some efforts will be short term to ensure politicians stay informed about trade deals and the role of Intellectual Property (IP).

    • Dubious advantages (Score:5, Insightful)

      by aNonnyMouseCowered ( 2693969 ) on Wednesday September 11, 2013 @10:23PM (#44826027)

      Imagine a mugger who claimed that he's a good mugger because he left you with enough money to catch the bus home. Should you be thankful that he didn't shoot you and that "all" you lost was a few hundred dollars, your credit card, and last year's iPhone?

      What the blog claims as the advantages of IP laws, such as DMCA's safe harbor and the limts on copyright and patents, are problems that wouldn't exist if the laws didn't exist in the first place (if the mugger didn't mug you, you wouldn't feel the need to be thankful that he spared your life).

    • "Another partial boon to FOSS communities is the Digital Millennium Copyright Act of 1998 (DMCA)." I guess when you're in jail for watching your DVD on a Linux box on the grounds you subverted the DRM you'll have that to console you.
  • His argument on patents seems to come down to the idea that FOSS can generate prior art, but that's only necessary because patent law exists in the first place. It still provides no net benefit to FOSS.
    • Open source communities can buy patents and use them to gain market share or revenue via licensing if they want, there's nothing inherent about releasing source that prohibits owning patents. They're expensive and difficult to acquire though which is why you don't often see it, so claiming a net benefit there is a bit of a stretch too.

      Trade secrets on the other hand? The secrets are in the source, which once opened are no longer secret. I can't find any far-fetched argument that supports trade secret law

    • Re:Still don't see patents helping (Score:5, Interesting)

      by Jaime2 ( 824950 ) on Wednesday September 11, 2013 @09:02PM (#44825495)

      That's how all of his points shake out. Every single one boiled down to... "Sure this law nearly turns thinking into crime, but there are some exceptions that you can work in". The FOSS philosophy requires no law to exist. For-profit software couldn't exist without legal protection. I'm not saying for-profit software is bad, but it certainly requires legal protection to sell something that requires almost no physical effort to reproduce.

      The question we can't get any real public dialog on is "How much protection is the right amount to create the world we want to live in?"

      • Re: (Score:3)

        by Hairy1 ( 180056 )

        A case can be made for all current 'intellectual property', but in essence it is all founded in a social contract. Its a deal we enter. Trademarks exist to protect good will and brand identity. There is a social benefit in knowing a certain product is made by a certain company because characteristics like quality can be inferred. Without trademarks any time some company got an edge with its name the name would be copied by competitors.

        In copyright there is a social benefit in the support of the creative art

        • Patents also help when innovation is expensive. Consider drugs: a drug company will spend a whole lot of money on clinical trials and the like, and there's an excellent chance, for any given drug, that it's money down the drain. Patents on drugs allow companies to make enough money to support this. I haven't seen a better method to get an allocate this sort of research money. (This is a defense of the general idea; I'm not making any claim about specifics.)

          Healthcare meds and equipment would be expe

      • Re: (Score:2)

        by Bob9113 ( 14996 )

        Wish I had mod points. A clear, concise explanation of which side requires force of law, and a final sentence that raises the question of balance while allowing the reader to seek his own conclusion. The epitome of a thinking person's post. Thank you.

      • but it certainly requires legal protection to sell something that requires almost no physical effort to reproduce.

        Not if you want support from the guys who wrote it. Which, incidentally, describes some of the arrangements I'm involved with regarding open source software, on both sides. Copyright has never been a factor.

      • I contribute to several open source projects, and I'm the maintainer for some. So I "get" open source. Your idea of "requires no effort" irks me, though, because it leads to very incorrect conclusions.

        FOSS works well when many people want the same software. Apache and Linux are examples - everyone needs an operating system and there are millions of web servers. If 0.1% of users contribute,
        they can build and maintain good software together.

        Where proprietary software works well is when there are a limited

      • Re: (Score:2)

        by msobkow ( 48369 )

        The key phrase would be "...almost no physical effort to reproduce."

        The problem is that the original production takes a great deal of effort, and has to be compensated for. While the freetards of the world think it's just about the cost of making a copy, that just isn't viable. Someone has to pay for the production in the first place.

        • If you want to maximize profit, then distribute the official release in as many markets as possible at once, which will reduce copying. It's already a good idea. Much of today's copyright infringement (why do people call it piracy? we have a term that actually describes it precisely) is due to region lockouts.

        • Re: (Score:2)

          by Jaime2 ( 824950 )

          Someone has to pay for the production in the first place.

          Maybe, maybe not. It's perfectly valid to be OK with living in a world where all IP is of volunteer quality. For most of the history of man, music was produced for free, although performances were often paid for. In the renaissance, there was a trend for wealthy people to finance IP, yet still make it public. On the other hand, you will get a more efficient market if people make music and software for money.

          The problem with using words like "freetard" or "M$" is that all that does is point out that one

  • TFA doesn't say anything about laws that help FOSS, except for trademarks. Because they don't help. TFA only mentions a few cases where they don't hinder.

    • TFA doesn't say anything about laws that help FOSS, except for trademarks. Because they don't help. TFA only mentions a few cases where they don't hinder.

      Trademarks don't help either. They harm. FOSS is less likely to be able to afford to go to court over a trademark.

      There is just one place where copyright law aids FOSS, and that is in licensing. Without copyright law, the GPL could not function. Some argue that the GPL is necessary only because of copyright law, but I disagree. It still covers the case where you get binaries but not source. Without copyright you'd be free to redistribute, but you could not practically make changes because you still wouldn't

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