Well, I did like drawing hovercrafts when I was little and I needed a set up for a joke about Internet Explorer. I thought it was funny anyway. ;)

Oh the Internet Explorer joke was great. I just wasn't sure why the guy was downloading Firefox from within a Hovercraft :) I do like the questioner's plan about fixing the two things: a) That you are penalised for independently inventing something, and b) That there is no "fair use" provision for interoperability. I agree, that would solve a lot of the issues (though not all). And while it is nice to imagine a world without software patents, it is probably more practical to make those as demands. In particular, the second clause would eliminate most "submarine patents" (patents where someone waits a long time until everybody is using a standard before revealing that they have a patent on that standard, and sues everybody). Matt

Three things about a free software exception: 1. It would pretty much mean recognising software as being patentable. (This might be the biggest problem.) 2. It would require putting a definition of free software in a law. (If this gets messy or botched, point #1 will hit us in the face.) 3. Australia has to comply with TRIPS: I think the two relevant parts of TRIPS are article 27: "...patents shall be available and patent rights enjoyable without discrimination as to [...] the field of technology..." And article 30: "Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties." http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm#5 So, would an "if you respect people's freedom" exception be allowed? The only attempt I know of at using this rule is the "curing epidemic" exception that some African countries with AIDS epidemics and no money thought of implementing. They were told 'No'. (A new worldwide treaty had to be negotiated.) -- +32 485 118 029 (<-NEW), http://ciaran.compsoc.com Please help build the software patents wiki: http://en.swpat.org http://www.EndSoftwarePatents.org Donate: http://endsoftwarepatents.org/donate List: http://campaigns.fsf.org/cgi-bin/mailman/listinfo/esp-action-alert

With regards to TRIPS, I don't think anyone allows patents of Maths. Or song writing techniques. Or, until recently, business methods. So there is clearly some ability to limit the applicability of patentable matter. And Europe clearly excludes "Software as such", and this was tested in their parliament. But going down the free vs proprietary route is quite different. And I would say a potentially huge distraction. What exactly does free mean anyway... Please leave it off the agenda. Anthony On Sun, Feb 12, 2012 at 7:28 AM, Ciarán O'Riordan <ciaran@member.fsf.org>wrote:

Three things about a free software exception:

1. It would pretty much mean recognising software as being patentable. (This might be the biggest problem.)

2. It would require putting a definition of free software in a law. (If this gets messy or botched, point #1 will hit us in the face.)

3. Australia has to comply with TRIPS:

I think the two relevant parts of TRIPS are article 27:

"...patents shall be available and patent rights enjoyable without discrimination as to [...] the field of technology..."

And article 30:

"Members may provide limited exceptions to the exclusive rights conferred by a patent, provided that such exceptions do not unreasonably conflict with a normal exploitation of the patent and do not unreasonably prejudice the legitimate interests of the patent owner, taking account of the legitimate interests of third parties."

http://www.wto.org/english/docs_e/legal_e/27-trips_04c_e.htm#5

So, would an "if you respect people's freedom" exception be allowed?

The only attempt I know of at using this rule is the "curing epidemic" exception that some African countries with AIDS epidemics and no money thought of implementing. They were told 'No'. (A new worldwide treaty had to be negotiated.)

-- +32 485 118 029 (<-NEW), http://ciaran.compsoc.com

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Second attempt sending to free-software-melb using a detached GPG signature. Originally sent Mon, 13 Feb 2012 12:58:18 +1100:

But going down the free vs proprietary route is quite different. And I would say a potentially huge distraction. What exactly does free mean anyway... Please leave it off the agenda.

With Software Patents, you have proponents who make proprietary software, and you have opponents that make proprietary software and free software. With Free Software Patents, you don't have any proponents from any business or company that focuses on free software. Right? Am I wrong? So the way I see it, the big opposition is going to have a much harder time arguing for free software patents - frequently written by individuals - not businesses, who often have no funds to defend themselves, and are generally unable to make use of the patent system anyway! It's as if I write a recipe book, and donate it to the public library for all to make use of as they best see fit. Then some corporation comes along and demands the book be burnt, and the author pay a large sum in compensation because the steps for a recipe in that book are similar to what the corporation came up with in a different book they probably never published. It's such a clear case of hurting the public ('against the public interest'), that I just can't see how you'd have a hard time winning if the focus was narrowed to this initially. Possibly you could even argue both cases at the same time. Software patents are incredibly bad and hurt the industry and thus also the customers who rely on these companies, but software patents on free software just hurts everyone. In the US, I think DMCA initially didn't have many exceptions, but then they got one for jailbreaking mobile phones. Then they're trying to spread that exception to other areas because it's easy to make analogies. I know DMCA isn't the same as patents, but my point is that getting software patents excluded from some areas could be a foot in the door to help eliminate it everywhere else. So for me, the distraction appears (to my also non-expert opinion) to be that we are focusing on the bigger long-term battle and ignoring/sacrificing the easy win that will make a lot of people happy. Adam

Hey Matt,

...

With Software Patents, you have proponents who make proprietary software, and you have opponents that make proprietary software and free software.

With Free Software Patents, you don't have any proponents from any business or company that focuses on free software. Right? Am I wrong?

I'd say fairly wrong. Firstly, when you say "Free Software Patents", I assume you mean patents being used against free software.

Nope, sorry for the confusion. I was trying to say that there are not many commercial entities that both work primarily with and support free software, and are also pro software patents. At least, I can't think of any. So the situation is quite different from proprietary software vendors, whereby you have companies who want software patents, and companies that don't. In the free software world, seeing software patents as a bad thing is much more black and white.

Look back at patent litigation against free software projects in the last decade. Usually they don't directly litigate against free software projects (who, as you say, are usually individuals), but against businesses using free software.

I'm sure I could come up with a few examples if I tried, however the threat is certainly there. We've seen Sony go after GeoHot (albeit using DMCA law). We've seen Blizzard shutdown the FreeCraft project (albeit using Trademark law). If patents are a way in which companies can attack an individual they see as a threat, they surely will.

(We absolutely want to protect those businesses in this community -- it is as much about them as the individuals.)

Agreed. Free software applies to everyone. I'm definitely not implying we should treat individuals and businesses separately.

Do you think these companies want to give up that edge over free software? Make no mistake: there will be huge resistance from patent holders to a proposal that makes it illegal to sue companies and individuals using free software that violates patents.

Sure, they might see free software as a serious threat, but it will be much harder for them to argue. As a quick example, they would need to prove that someone or some group who may very well write free software only to benefit humanity, that may have no intention or means of making money from it, should be subject to patent law. Patent law is supposed to be about innovation and business competition, neither which necessarily apply to free software authors.

But they won't be going after the individuals, they'll be going after the businesses who do have funds to defend themselves. They'll be coming out and saying "how dare Samsung sell a device with free software on it that steals our ideas?" They'll find a way to not make it look like a David v Goliath.

It doesn't matter (individuals or not). It can happen, but it clearly shouldn't be allowed. So there is a good argument there. Even if you don't agree, you can argue that attacking a company using free software is the same as attacking free software authors. Take your example Samsung device; it could be (and likely is) that free software authors wrote software specifically for that device. Take that device away, and the free software is useless - the equivalent of book burning. You could go on to make similar arguments against hosting companies, OS distributors, ISPs, etc. Harm these companies for using or distributing free software due to software patents, and you harm all the small free software authors too. I could go on, but I don't think your argument has merit anyway since it's basically just saying "Don't worry about this potential for huge injustice in the system, because I don't think it will be abused since patent holders don't want to look bad". :)

It's as if I write a recipe book, and donate it to the public library for

...

all to make use of as they best see fit. Then some corporation comes along and demands the book be burnt, and the author pay a large sum in compensation because the steps for a recipe in that book are similar to what the corporation came up with in a different book they probably never published.

No, it's more like if you write a recipe book and say "anyone can sell my recipes" and then a big company comes along and starts selling your records, and *then* another company goes and sues them for selling your recipes that are similar to theirs. That isn't such a black and white issue (at least in the public view) because it's company vs company. Even though in my view, it is wrong.

Well that's a different story all together, but IMO it still wouldn't work. It is unlikely they would actually be selling my records because there would be no value in that - it's already free software and readily available for anyone to copy. So it would simply be argued that the only thing they are selling is the device/service/product that makes use of that code. Adam

Ah, I see. But then I don't really agree with the logic. I agree that there aren't really any free software companies that support software patents. But they aren't the ones who will be opposing this -- it will be the proprietary software companies who don't want free software companies to have an edge on them.

Understood. However then the policy makers would need to make a concious decision - do I hurt small businesses and take away the rights of individuals working in the public interest to aide big business? If the government has any morals, they won't. It should be an easy win. But you're right - we absolutely cannot count on it. :) I still think it's an easier argument. If this is that difficult, abolishing software patents entirely would seem almost impossible. Yet we have hope for that (as we should).

The argument could be made (and I don't, of course, agree with it, just playing Devil's Advocate):

"Patent law is to encourage innovation. Innovation costs money.

Right there. We can clearly prove that innovation does not cost money, with countless examples. How much money did Vim cost to make? This also implies that patents can only hurt free software, since it is frequently at a clear disadvantage. Perhaps it is corporations with their patents that are holding back innovation - the ability to improve upon an idea or to interoperate with software to perform an innovative function. I absolutely believe is often the case.

We invest money in research under the condition that we can make money from our invention, without competition, for 20 years.

Haha. Yeah. Don't make me cry. :)

We cannot allow these hobbyists to rip off our ideas and then compete with us at zero cost. That will mean we have no incentive to invest money in further research."

From the ABC website: http://www.abc.net.au/tv/newinventors/txt/s1097642.htm "The cost of an Australian standard patent including attorney fees is usually between $5000-$8000. Annual maintenance fees are payable from its fifth year. Over a 20-year term these will add a further $8,000 to the cost." So if a company can afford to buy patents, they can likely also afford more developers. Would they argue that a few developers (potentially non-free, working in their spare time as a hobby) is serious competition for them?

Then, add in the argument that free software is not just hobbyists, but also includes commercial competitors (like Android). You basically have the full strength argument for why the patent system is needed in the first place.

How much money does Google make from Android? Actually, I read that Microsoft makes the most money from it. From patents. :) Sorry. Not buying your argument.

I am sure they will not see any distinction between commercial entities using free software licenses and commercial entities producing proprietary software.

One important different (not necessarily for us, but for policy makers) is that the software typically isn't being 'sold' if it's free software. It's only serving to help sell something else, if it's selling anything at all. It's in the public interest as it provides essential freedoms for all, whereas proprietary software only benefits one company (or occasionally one person) financially. Those are some pretty big distinctions IMO.

Any argument against the patent system can be applied equally to free or proprietary software.

That's what I've been trying to show my disagreement over. I don't think we can convince each other easily. :)

It doesn't make sense in my mind to say "patents should not apply to free software," any more than it would make sense to say "parking meters should not apply to cars that have been custom built by the driver." Either you think parking meters are a good thing and should apply to anyone who parks in a spot, or you think parking meters are bad and everyone should be able to park for free. It has nothing to do with the conditions under which the car was built.

Still not looking at the big picture. Parking meters don't apply to bicycles. Why not? Bicycles are vehicles too. But they don't have a huge up-front expense and are easily obtainable by all - including kids. Because the barrier to entry is so low, and the value they provide (being safer, and the only common vehicle allowed on the road that's available to non-adults), it doesn't make sense to put parking meters at bike stands. If I make a computer program and release it as free software, it doesn't make sense for the patent system to apply to me because I can't afford time/money to start a company and patent things. That too would be crazy. If making an analogy to software patents, I'd say you have a parking meter at every public bike rack, and we're the ones arguing that this isn't fair - some people can't afford to use them. Then you have car owners saying "hell no, we're paying taxes and we're all driving vehicles here - they need that meter". :) That's the closest analogy I can think of, although I admit it's not perfect. We don't necessarily want the parking meter scheme abolished completely as we do patents.

Well I'm not trying to defend patent holders. I want to get rid of patents. I'm saying that a) free and proprietary software authors have equally much to gain by removing patents

Not true - depends on the proprietary software, as I pointed out in my previous e-mail.

b) I doubt you will find it any easier to convince lawmakers to get rid of patents in free software as you will to convince them to get rid of patents entirely.

Still haven't seen any clear arguments demonstrating this IMO. However, it also hasn't been demonstrated that it should matter - and that we can't argue both points at the same time.

Yes, there are lots of harms to free software authors by having software patents. But they are just as harmful to proprietary software authors.

If that were true, you would see free software authors licensing patents. Funny that doesn't typically happen. :)

A startup who wants to build a photo-sharing platform (and doesn't necessarily want to make the source public, because they want a competitive advantage) may be sued by a troll who has a patent on photo sharing, and go out of business. The net result is we don't have any photo sharing (since the troll isn't actually providing a service, just suing). That's bad for innovation, and bad for the industry. Those cases are just as important as free software cases, in my view.

You're still forgetting my argument that free software should be in the public interest. It's difficult, or perhaps impossible to make the same claims about proprietary software. So it's not just as important, but I agree it's still quite important.

Of course, this is a free software discussion group, so perhaps the argument to that is "why should we care about someone who isn't releasing their source code?" "Why don't we just look after our own people?" Fair enough, but I'm saying that if you want to fight against X, the best thing you can do is gather up as many people who will be threatened by X and all fight together, even if you disagree with those people about other things.

I would normally agree, but in this case by arguing alongside with proprietary software, we expand the scope of what we're fighting for and take on additional problems associated with representing it. I'm certainly not saying that we should give up on software patents in general, however I continue to believe that putting forward an argument specifically for free software to be considered 'in the public interest' would be easier than abolishing software patents entirely forever.

Nobody would ever win a battle against X if all of the various interest groups who oppose X all decided to start their own little campaign to protect their interest group from X and did not care about any of the other interest groups. United we stand, yada yada yada.

Free software supporters can argue for both. I can't see why not.

To show how silly and divisive that logic is, say that there is a web app community, and they get fed up with getting sued all the time for violating every little one click or embeddable object patent. So they team up to fight software patents. And we, in the free software community, say "yes! We need to get rid of software patents!" But then, these web app authors go to the government and say:

"We need to put an end to patent trolls suing us for web content. So we propose a law which says that patents cannot be used against web technologies. After all, the web is a source of rich innovation and it is being harmed by patents."

That actually might fall under free software banner, since the code is sent to the client web browser in human-readable form (or easily made to do so anyway). Anyway I see your point, but I disagree any example you could care to name could truly be considered 'in the public interest' like free software could.

Wouldn't it have been better if the free software community, the web developers community, and any other community that had an interest in fighting patents, all got together and made a global argument over why patents are bad, rather than each trying to secure small patent exemptions for their special interest?

I still see any patent exception as a stop-gap measure. A step on the long road to victory. As for if this is best or not, we need to ask a legal expert I think. Regards, Adam

I thought that there was a really great idea from a commenter at the end of your talk whereby free software would be considered by law 'in the public interest' and becomes except from applying to patent lawsuits at all.

Not only would this meet our goals of being able to write and use free software without consequence, but it would also encourage businesses to publish free software to protect their efforts. I like it.

I share Ciarán's objections to this idea, but I thought I'd add some points of my own. Not wanting to open the "GPL vs BSD" debate -- I find the GPL more to my liking, but I still think it's important that people be able to license things as they wish, and this idea would seem incompatible with the ideals of the BSD license. Saying "free software is exempt from patents" would mean that any BSD-licensed software that infringes on others patents would not be a fully open product. You could use it in other free software projects, but you would be unable to use it in a proprietary product without patent issues. So effectively, it would transform the BSD into the GPL. Also, would this law be applied to free-as-in-speech software, or free-as-in-beer software, or both? If I write a proprietary program but give it away for free (freeware), am I exempt? If I write a GPL program but sell it, am I exempt? It seems a tad unfair to say that commercial open source software is exempt from patent lawsuits, as it would mean that a company could gain exemption merely by providing the source code to their software. That would further our interests, but I'm not sure it would really be in the interest of the industry. While I like free software, I respect the right for people and companies to keep secrets, if they wish. I prefer to let the market decide: if you want to lock up your software, then I won't buy it, but that doesn't mean I should be able to stop you from doing so. I find it troubling when people suggest special rules for free software. For example, at a recent talk, someone asked Richard Stallman: "if you want shorter (5 year) copyright terms, wouldn't that mean that all GPL'd software would go into the public domain after 5 years and it could then legally be used in proprietary software." And his answer was that there would have to be a special exception for free software so that the copyright term lasted longer. Sorry, Richard. I like the GPL and what you've done, but it seems hypocritical to ask for everybody else's copyright to expire but let us keep ours because it suits our interests. Patents are a plague on the entire software industry. They are bad for free software. They are bad for proprietary software. Patent reform therefore needs to be industry-wide. We can't make this a free vs proprietary issue, because it's bigger than that. It's bigger than the issue of whether source code is available and whether you are free to modify it -- this is a fundamental issue of being allowed to write any software you can imagine, and I want the right to be able to do that whether I am releasing my source code or not. Matt

On 12/02/12 14:42, Ben Sturmfels wrote:

On 12/02/12 12:05, Matt Giuca wrote:

...

...

I thought that there was a really great idea from a commenter at the end of your talk whereby free software would be considered by law 'in the public interest' and becomes except from applying to patent lawsuits at all.

Not only would this meet our goals of being able to write and use free software without consequence, but it would also encourage businesses to publish free software to protect their efforts. I like it.

I share Ciarán's objections to this idea, but I thought I'd add some points of my own.

...I find it troubling when people suggest special rules for free software. For example, at a recent talk, someone asked Richard Stallman: "if you want shorter (5 year) copyright terms, wouldn't that mean that all GPL'd software would go into the public domain after 5 years and it could then legally be used in proprietary software." And his answer was that there would have to be a special exception for free software so that the copyright term lasted longer. Sorry, Richard. I like the GPL and what you've done, but it seems hypocritical to ask for everybody else's copyright to expire but let us keep ours because it suits our interests.

Free software is in everybody's interest, whereas normally copyright only works in the interest of an individual or company. I haven't heard RMS make such a statement before, however I disagree the two are comparable.

...

Patents are a plague on the entire software industry. They are bad for free software. They are bad for proprietary software. Patent reform therefore needs to be industry-wide. We can't make this a free vs proprietary issue, because it's bigger than that. It's bigger than the issue of whether source code is available and whether you are free to modify it -- this is a fundamental issue of being allowed to write any software you can imagine, and I want the right to be able to do that whether I am releasing my source code or not.

Matt's last paragraph is excellent and I agree heartily that patent reform is needed for the entire software industry.

There's no disagreement from me that it's a problem for the entire industry. However, there is plenty of speculation that it's going to be very difficult to completely abolish software patents, and that we should aim our sights lower. I don't really agree with this view, however I'm no expert and maybe we really do need to consider looking at this from another angle. At the moment, all I've heard is that if we go down this path, we would need to try to convince politicians that a number of changes (2 at minimum) need to be made to software patent law. Maybe it's easier to just get one change through instead? Ben, you said you are applying the 'Divide and Conquer' approach to patents (since patents are probably also a real problem in other industries). If software patents as a whole is too large a chunk, perhaps dividing out free software as the first step will be easier? I don't know the statistics, however I'd expect the majority of people interested in ending software patents also have a soft spot for free software. With free software patents out of the picture, most probably one could expect that attacking the remaining software patent issues would then be easier. I could imagine software companies eventually turning around to complain that free software is too competitive and they need to be exempt from patents, and we would have proven that changing the patent system is possible, so maybe we would get even more support. Then there's the additional reasons I mentioned before. So Matt, such a first step wouldn't necessarily be in the best interests of the proprietary software industry - true. I'm definitely not saying we forget about abolishing software patents entirely, but just suggesting we fight smaller easier battles at a time in a way that might make the entire war more conclude more quickly. I personally would rather have patents become less and less of a problem over 10 years, over having them wreak Hell on everyone for 10 years until they are abolished all in one hit. But like I said, I'm no expert on what the best approach is. Ben said he wasn't either, and I'm not sure if it's something that's been seriously considered yet.

Endowing a benefit to free software by excluding it from patentability in no way "transforms the BSD into the GPL". Sure if you use BSD-licensed code in a proprietary program you wouldn't receive the proposed patent exclusion benefit.

That was my thinking too. If people want to take BSD code and make it non-free, they would just take on the patent risk no differently than they already do - at least for as long as software patents exist (which I agree, won't be forever if we keep up the fight). Regards, Adam

On 12/02/12 21:32, Bianca Gibson wrote:

Rather than going off guesswork I think the proportion of people interested in ending software patents that have a soft spot for FS would need to be investigated before any action was taken based on it. How do we know it's not just the active and visible people, and the ones we happen to meet?

My understanding is that we're *already* going off guesswork. We're guessing that going against software patents completely is a better approach to any of the alternatives, without having consulted with any legal experts. Unless things have changed since LCA? I'm not saying you don't make a good point, but getting an accurate figure first may prove difficult. For example, if we said to people "in order to abolish software patents entirely, after talking to legal experts we have concluded that abolishing patents from free software is the most appropriate first step", I think people would be more likely to get on board than if we just let people assume that we only care about the effects of software patents on free software. So IMO, we first need that confidence in which should be the better approach to attacking software patents, so we can be transparent with our supporters before we go chasing statistics. Besides, it could very well turn out that the approach we are already taking (abolish them all in one swoop) is best and then we'd have wasted the time and effort it takes to organise a large scale survey. Regards, Adam

Sorry, it's getting confusing as it seems this list is forking a lot -- some of the replies are going to endsoftwarepatents.org and others aren't. For simplicity (and since I have no idea who is on that other list or how big it is), I'll just keep my reply within MFSIG. On Sun, Feb 12, 2012 at 2:42 PM, Ben Sturmfels <ben@stumbles.id.au> wrote:

The first three paragraphs are quite flawed though. I realise I'm going well off topic, but I'd like to address Matt's points about free software:

Endowing a benefit to free software by excluding it from patentability in no way "transforms the BSD into the GPL". Sure if you use BSD-licensed code in a proprietary program you wouldn't receive the proposed patent exclusion benefit. That's no different to today's situation though. This suggestion really is just inciting GPL/BSD flaming.

I'm not trying to incite flaming. The reason I said that it transforms it is that at least in today's environment, all free software developers (GPL and BSD-like) know to avoid patents wherever possible. I'm not going to write a BSD-licensed video player that uses H.264 when I can use WebM. Under my (hypothetical) BSD philosophy, I'm happy for proprietary software manufacturers to use my (hypothetical) video player. Now let's make a law that exempts free software from patent litigation. Now free software developers are going to stop worrying about patents, and I may very well implement a video player using H.264 (being the more popular standard), without fear of patent litigation. However, what I may have forgotten is that my downstream proprietary software manufacturers (who I am philosophically happy to use my software) will be unable to use my software without patent risk. So while the *copyright* status of my software is still permissive (BSD), the *patent* status is effectively at a GPL level of restriction (you can only use this in a free software project). When you say "That's no different to today's situation though," I think it is different, because free software projects will be more inclined to implement patent-encumbered standards. What I am really getting at here is that I think "software freedom" is about more than "free software". Free software is great, but software freedom is deeper: it is about my right to use computers for any purpose I desire. That includes the right to produce proprietary software. Patents are an attack on software freedom, and it would be short-sighted, I think, to consider them to be merely an attack on free software. I am nervous about this proposal because it promises a world in which the free software community is no longer worried about patents, but in which my freedom (to write proprietary software using patented technology) is still restricted. That, in some ways, *strengthens* the patent system, because patent holders know that they can convince free software projects (such as web browsers) to implement patented technology as standards, and force any proprietary project that wishes to follow those standards to pay up. Free software makes no distinction between software distributed at zero

price and software sold for a fee. This means the questions posed about cost aren't relevant.

Fair enough. Discussions of copyright are irrelevant to discussion on patents. Besides

that, endowing a copyright benefit to free software would be endowing a benefit to society as a whole. There's no hypocrisy there.

-- going off topic -- I was making an analogy between RMS asking for special copyright provisions for free software and this discussion asking for special patent provisions for free software. What disappointed me about asking for a copyright benefit to free software is that it would break the thing that makes the GPL so special in the first place: it does nothing other than grant *additional rights* to that of copyright. To quote the GPLv3: You are not required to accept this License in order to receive or run a copy of the Program. ... However, nothing other than this License grants you permission to propagate or modify any covered work. These actions infringe copyright if you do not accept this License. Therefore, by modifying or propagating a covered work, you indicate your acceptance of this License to do so. There are people who find the GPL's terms unacceptable. They say "the GPL is bad because it locks me into this set of restrictions." To those people, I say, "ah, but you are a proponent of proprietary software -- you cannot possibly have a problem with the GPL because it grants you a superset of the rights that regular copyright grants you. You don't have to accept the GPL if you don't want to -- you can simply treat it as an ordinary copyrighted piece of software if you wish." Having a shorter copyright term, but keeping the long term for free software would mean that the above clause is no longer true. In this world, I would have certain freedoms with proprietary software that I would not have with GPL software. For example, I would be allowed to reverse engineer a 5-year-old proprietary program and incorporate it into my proprietary software, while the GPL software would still be under copyright and I could not do that. So the GPL would no longer be merely granting additional rights to the user; it would also be taking away some rights (the lapse into the public domain after a short period). -- end off topic section -- On Sun, Feb 12, 2012 at 5:54 PM, Adam Bolte <abolte@systemsaviour.com>wrote:

With free software patents out of the picture, most probably one could expect that attacking the remaining software patent issues would then be easier. I could imagine software companies eventually turning around to complain that free software is too competitive and they need to be exempt from patents, and we would have proven that changing the patent system is possible, so maybe we would get even more support. Then there's the additional reasons I mentioned before.

I wouldn't necessarily think that it would be easier to attack the remaining patent issues. What that would accomplish, in my view, would be to divide the free software and proprietary software communities. Once the free software community has their patent problems solved, do you think they will continue to campaign against patents? No ... patents would be seen as "solved" in our community, leaving the proprietary software community to fend for themselves. You may argue they have a lot more money to combat the issue, but they also don't have the passionate community support, and they aren't necessarily against patents either (I don't know if Apple or Microsoft seriously want to see the end of software patents). I feel like taking action specifically against free software patents would be like throwing everybody else under the bus to further our own cause. As I said earlier, I don't see patents as a free software issue. I see it as a global software issue. If I could put it in terms of the recent SOPA debate, what would have happened if it was just the free software community that got angry about SOPA, and staged large protests, and finally convinced the government to make a provision that said free software sites could not be blocked under SOPA, but all the other sites still could. We might consider that a victory, but wasn't it more important to protect free speech than simply the sites run by members of our community? Now, we have an even worse scenario, where we have SOPA, but nobody in the free software community is going to fight against it because they got their way already. I don't think it's appropriate for the free software community to "claim" the patent war in their own name. If we're going to go with a "divide and conquer" approach, I would be much more interested in securing small (but global) repeals in the patent system. As the questioner suggested: a) requiring reasonable proof that the patent was copied (not penalised for independent invention) and b) having a "fair use" provision for interoperability with standards. Those two things would be far more reasonable than killing patents entirely, and would satisfy Adam's desire to "have proven that changing the patent system is possible."

On 13/02/12 12:45, Matt Giuca wrote:

Having a shorter copyright term, but keeping the long term for free software would mean that the above clause is no longer true. In this world, I would have certain freedoms with proprietary software that I would not have with GPL software. For example, I would be allowed to reverse engineer a 5-year-old proprietary program and incorporate it into my proprietary software, while the GPL software would still be under copyright and I could not do that. So the GPL would no longer be merely granting additional rights to the user; it would also be taking away some rights (the lapse into the public domain after a short period).

The goal of free software is freedom for people who *use* software. To claim that the ability to restrict other people with proprietary software is a "freedom" is twisted logic indeed. Secondly, you're welcome to "reverse engineer" GPL software any time without infringing copyright (assuming this means looking at the task the program performs and writing a new program that does a similar task). You may have infringed patent law though. This is another example why copyright and patent should be discussed separately. Regards, Ben

On Sun, 12 Feb 2012, Matt Giuca <matt.giuca@gmail.com> wrote:

While I like free software, I respect the right for people and companies to keep secrets, if they wish. I prefer to let the market decide: if you want to lock up your software, then I won't buy it, but that doesn't mean I should be able to stop you from doing so.

I believe that software which is used by the government, which the government compells citizens to use (EG for communicating with government agencies), or which is needed to interpret data published by the government (IE for reading anything from abs.gov.au) should at the minimum have the source available via escrow. If in 30 years time someone wants to view old government data that is published in MS-Excel format (as happens a lot on abs.gov.au) then we shouldn't be denied access if MS stop selling the software. If MS won't put their source in escrow then MS software should be prohibited for such use. MS can keep their secrets, but a ban on all government purchases should be the result if they choose to do so. The same applies for all data which has government legislation that demands it be kept. This includes financial reports and all manner of medical data. It is simply unacceptable that if a medicine on sale now turns out to give an increased risk of cancer in 20 years time it might be impossible to access all the data related to the production of the medicine and the people it was prescribed to because MS decided to change file formats (*). It is also unacceptable that a company like James Hardy might choose an almost obsolete version of MS-Office to store financial data in order to make it more difficult for lawyers representing people with lung cancer to present a good legal case. (*) I have some knowledge of how things work in a medical company and I believe that this sort of thing will be a real problem. -- My Main Blog http://etbe.coker.com.au/ My Documents Blog http://doc.coker.com.au/

On Sun, Feb 12, 2012 at 12:05 PM, Matt Giuca <matt.giuca@gmail.com> wrote:

Also, would this law be applied to free-as-in-speech software, or free-as-in-beer software, or both? If I write a proprietary program but give it away for free (freeware), am I exempt? If I write a GPL program but sell it, am I exempt? It seems a tad unfair to say that commercial open source software is exempt from patent lawsuits, as it would mean that a company could gain exemption merely by providing the source code to their software. That would further our interests, but I'm not sure it would really be in the interest of the industry.

Let me see ... hmm, yes. Also, important would be: *how* FOSS is exempted by the patent laws! Along with the monopoly, the patent law creates a protection: cannot patent something for which prior art exists. In the assumption that the patent law does not apply to FOSS, will FOSS still benefit by the same protection? (i.e. suppose Jose Garcia<http://www.bbspot.com/news/2003/12/valve_unified_theory.html> implements the Unified Theory in an Open Source physics game engine. Would Valve be able to patent it?) What the software patent supporters would do to a politician arguing the exemption of FOSS from the monopoly applicability of the patent law but still keeping the benefit from the protection of the prior art provisions of the law? Adrian

On Tue, 21 Feb 2012 12:35:08 +1100, Matt Giuca <matt.giuca@gmail.com> wrote:

They intend to introduce FRAND ("fair, reasonable and non-discriminatory") patent licensing law, which would mean you can't simply withhold patent licenses, you need to license them to anyone who wants them under reasonable terms. But they intend to exclude free software from the definition.

The proposal concerns the adoption of European standards. The proposal allows for the adoption of patent encumbered standards, and while they do not intend to adopt standards where the patent licences can be withheld, they still allow the patent holders to charge licence fees from anyone who uses or distributes software that implements the standard, and discriminate against those who cannot pay the fees. This disadvantages free/libre software, because it enforces a particular distribution model that is incompatible with the basic freedoms. The best solution is to scrap software patents so that standards are not compromised. At worst, if there are software patents, a government should only adopt open standards where the patent holders are prevented from asserting their patent rights, otherwise they can hardly call them "open standards". Glenn -- pool.sks-keyservers.net 0xb1e82ec9228ac090

On Tue, Feb 21, 2012 at 12:35 PM, Matt Giuca <matt.giuca@gmail.com> wrote:

Well, looks like Europe just did the exact *opposite* of this -- it was on Slashdot this morning:

http://press.ffii.org/Press%20releases/EuroParliament%20to%20exclude%20Free%...

They intend to introduce FRAND ("fair, reasonable and non-discriminatory") patent licensing law, which would mean you can't simply withhold patent licenses, you need to license them to anyone who wants them under reasonable terms. But they intend to exclude free software from the definition. (I'm not too sure on the details, but it doesn't sound good.)

The details are here: http://eur-lex.europa.eu/smartapi/cgi/sga_doc?smartapi!celexplus!prod!DocNumber&lg=EN&type_doc=COMfinal&an_doc=2011&nu_doc=0315 The (F)RAND requirements are exposed in "ANNEX II REQUIREMENTS FOR THE RECOGNITION OF TECHNICAL SPECIFICATIONS IN THE FIELD OF ICT" I searched for "open source" and "free software" in the entire document - 0 occurrences. Adrian