So much to say, so little time.....
First, let's set a couple of definitions. Software is the object codes
produced by a compiler/linker/etc... toolchain. Software source code
(or just source code) is the stuff we write with some editor that's
translated into software. A technical process is more commonly called a
technique, and has always been patentable. A business process is often
called a procedure, or business rule, and only recently became patentable.
Software is not a process, it is not a written work, it is not a
manufactured item, software is a manufactured good, and is not subject
to any protection at all (you cannot patent the monitor in front of you,
but you can patent the technique for making the liquid crystals bond to
the glass substrate without introducing off-angle crystal strain).
Software *source code* is a DESIGN (much like an architect's drawing, or
an engineering blueprint), and as such is subject to copyright and
trade-secret. The idea of patenting software is based on a very
convoluted interpretation of the business process definition. Remember,
business processes were not patentable until the mid 1970's, when the
Supreme Court reversed over 150 years of court precedent, basically on a
whim (the decision is interesting reading for those who like twisting
trails and such). The patent for barbed wire applied to the one
specific physical method (not a business process, a technique) used to
create barbed wire, within a few years of the first patent there were
several hundred, all for slightly different techniques. Barbed wire is
a case study in many engineering curricula on how some innovations
aren't worth patenting because there are too many variations in basic
technique that would bypass any valid patent (although the ability to
patent a process can make many such innovations profitable to patent,
that's a completely different point). The Haber-Bosch process (again a
technique, not a business process) for manufacturing ammonia was
patented, and is an excellent example of a patentable innovation.
Software is, technically, either a mathematical formula, a design, or a
business process, depending on how you view it, in any case, software
has very nearly 0 marginal value until published (in some form), so
there's relatively little value in permitting copyright or patent. If
you view the source code as the valuable part, and view it as a design
document (or even as a business process document), then copyright makes
sense. Copyright protects the specific expression (that particular
construction of source code), but not the algorithms implemented (which
are useless unless published in some form). Copyright incentivises full
publication of the entire work, since only the work *as published* is
considered copyrighted. Copyright restricts copying, but not
reimplementation or reverse-engineering, which prevents some of the
worst abuses of the system we've seen over the past decade.
I would say that there are three fundamental failures in the current
state of copyrights and patents:
1) Copyright and Patent are TRADES, the government grants a monopoly,
for a limited time, and the creator PUBLISHES the work, and permits
certain uses without restriction (fair use). Current law eliminates the
entire tradeoff portion, by not requiring publication, and permitting
restrictions on fair use via the abomination of EULA's and such. If a
creator wants to keep their creation a secret, then the proper law to
apply is Trade Secret, but that's hard to maintain, and the rights
involved are quite limited (if someone independently comes up with the
same innovation, the trade secret lapses immediately). Companies want
monopoly power, they just don't want to pay for it, so they lobby to
keep the monopoly without trading the release of "their" innovation to
society.
2) Copyright and Patent were intended to be for a limited time. Current
copyright might as well be eternal, and patent is close behind, now that
a company can patent an innovation, and when that expires submit a new
patent on the derived characteristics (essentially the same innovation
reworded) until they cannot find a different way to describe the same
item (the drug companies started doing this in 2002, and it's Really Bad
for people suffering from certain illnesses).
3) Certain innovations were excluded from copyright because there was no
need for a trade. The only way to gain value from the innovation was to
publish it, so there was no need for society to give up anything to the
creator in return for publication. Mathematical formulae, business
processes, social practices, and several other areas have no (or
extremely limited) value unless published, so there's no need to
incentivise publication, just let natural market forces do the work.
There's much more to say, but I'm close to collapse from fatigue, so
I'll stop there.
One last item:
Locks are there to discourage dishonest people, honest people don't need
any help to stay honest, honesty is part of who they are, and it's as
hard for them to act dishonestly as it is to hold your breath until you
pass out. Dishonest people, on the other hand, need to know that the
effort to get around the locks isn't worth the potential gain. The
problem with "locks" on digital media is that you need only break the
lock once to access an unlimited number of copies of that protected
work. That forces the breakin cost to be extremely high to act as an
effective deterrent. The problem lies in that, to make the cost high
enough, you have to pretty much trample on the natural and legal rights
of all of the legitimate users. Society has, historically, found that
the natural rights of legitimate users are an effective limit to how far
one may go to discourage theft. You cannot, for instance, run 30,000
lumens of exterior lighting in a residential neighborhood, even though
that would highly discourage anyone from breaking into your home, it's
considered too damaging to your neighbors' rights to sleep at night.
The courts routinely balance these types of concerns, and many believe
they've gone way off balance with the way DRM is handled, since the
elimination of fair use (which DRM does), is of great harm both to the
individual user as well as all of society. If we, as a society,
continue to permit DRM techniques, and continue to grant such
exceptional power to the content owners, we run the risk of killing the
free exchange of art that stimulates cultural growth, the very thing
copyright is intended to stimulate. People have always copied
copyrighted works to a limited extent, and it used to be considered
acceptable under fair-use, in most cases. Only recently have we been
sold the concept that any copying is bad. Large-scale illegal copying
has always been prosecutable, and it still is. In my opinion, DRM is
not about protecting copyright anyway, just look at how it's been used,
it's about protecting a monopoly-style distribution system, and that's
something society has a vested interest, not in supporting, but in
actively dismantling.
==Joseph++
Bryan.ONeal@asu.edu wrote:
>Quoting Kevin Brown <kevin_brown@qwest.net>:
>
>
>>I don't think it should be patentable since code isn't
>>really a process...
>>
>>
>
>This is where we disagree, I believe code is a process.
>
>
>
>>...simply instructions that still require a machine to make them work,
>>
>>
>
>Just like the patented process of twisting bobbed wire ;) Nearly all patented
>processes require machines, or people to care them out.
>
>
>
>>US Copyright Timeline
>>http://arl.cni.org/info/frn/copy/timeline.html
>>
>>Copyright laws block documentary showing
>>http://www.freep.com/entertainment/tvandradio/tv7e_20050207.htm
>>
>>
>>
>
>Good links,
>
>
>
>>As for DRM. That is a trickier place to stick my toes.
>>I'm for it in certain regards, but against it in others.
>>PDF allows me to lock down my data as I choose, but
>>the spec is open and others writing code to that spec
>>can just ignore those flags. I can see that authors might
>>not like the fact that others can just yank stuff out of the
>>PDF that they supposedly locked down,...
>>
>>
>
>Locks are their to keep honest people honest. Dishonest, and determined people
>will always find a way.
>
>
>
>>Same thing with CDs. I can see the industry not liking
>>individuals ripping and encoding the CDs for
>>distribution on the Net without the permission of the
>>copyright holder. But I don't like them stomping on my
>>ability to listen to the music I purchased in a way that
>>works for me. I carry my entire collection with me
>>wherever I go and it weighs far less on my laptop than
>>carrying around 100+ CDs would weigh.
>>
>>
>
>I could not agree more! But if you purchase a CD with a clear restriction on
>transfer of medium, I think we should respect that... Or, as I do, not purchase
>the album ;) Then again many artist are providing their music in a free on
>demand way with the web. And not just local groups, Prince and Gwen Stefani
>both do it, but their fans still purchase their albums. However other have seen
>sharp (but not necessarily dramatic) declines after getting harsh with their DRM
>(Cough, Cough, Metallic) And while I am not going to give up my priory purchased
>box sets, I will not purchase any more.
>
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