I've been reading some of the amicus briefs filed in the In Re Bilski case pending before the US Supreme Court.
There is an amicus brief [PDF] filed with the Supreme Court in the Bilski case that I think will interest you. It discusses software and whether it is math, it misrepresents FOSS, and it pushes software patents. It was filed by Professor Lee Hollaar and IEEE-USA.
If that name sounds familiar, it should. Yes, this is the same Professor Hollaar that Alexander Terekhov and Daniel Wallace so often have quoted and linked to in their anti-GPL campaign here and elsewhere on the Internet. And digging a bit, I find a connection between Hollaar and Senator Orrin Hatch, whose son is one of the attorneys representing SCO, and between Hollaar and Caldera back in the days when it was suing Microsoft. Knock me over with a feather. It's a small, small SCO world. And I detect a Psystar shadow, too.
His brief says this is his interest in the Bilski case, while also giving some details about his background:
Interest of the Amici Curiae
So there you are. He is a professor of computer science. He certainly has qualifications in the field of patents as a technical expert, but he didn't go to law school. That surprised me -- Hollaar isn't a lawyer. His bio says he's a patent agent, and while obviously he has many credentials, attorney isn't one of them. The way I have seen him quoted, I always imagined he was.
Lee A. Hollaar, the author of this brief, is a professor of computer science in the School of Computing at the University of Utah. He teaches courses both in computer and intellectual property law and in computer systems and networking. He has been programming computers since 1964 and designing computer hardware since 1969. He received his B.S. degree in electrical engineering from the Illinois Institute of Technology in 1969 and his Ph.D. in computer science from the University of Illinois at Urbana-Champaign in 1975.
Professor Hollaar is an inventor and patentee of computer-related technology; a Registered Patent Agent involved with the prosecution of patent applications since 1989; an expert witness, consultant, and special master in patent litigation; the author of Legal Protection of Digital Information (BNA Books, 2002) and course material on computer-based patents; and a teacher of that material.
He is concerned that the decision in this case will continue the unclear lines of what is statutory subject matter by making distinctions not tied to real technological differences or may force inventors of computer-program-based inventions to claim them in ways that obscure the patentable advance over the prior art.
Dr. Hollaar is the former chair of IEEE-USA’s Intellectual Property Committee, where he supervised the filing of the amicus brief whose theory of foreseeability was adopted by this Court in Festo, and filed an amicus brief on his own behalf in Grokster whose theory of inducement liability was also adopted by this Court.
It says he authored the brief, but it's signed by a lawyer, David M. Bennion, of Parsons Behle & Latimer, "Counsel for Amici Curiae Professor Lee A. Hollaar and IEEE-USA". Here's the summary of the argument presented:
Summary Of The Argument
As you can see, it isn't an irrational position, that anything that uses a machine is statutory subject matter, meaning conceivably patentable, but he later in the brief specifically says that *any* computer is a machine, so I think he's arguing that all software would be statutory subject matter, with the proviso that it would then have to prove it was nonobvious and actually innovative to get a software patent.
This Court’s trilogy of software patent cases, and the lower court decisions trying to reconcile them, have led to over three decades of uncertainty. This Court should use this case to repudiate those unfortunate cases (and thereby the opinions below based on them) and go back to the original clear and simple test for determining when a process is statutory subject matter:
- A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter.
Such a test is needed so examiner time can be spent more productively on the critical questions of novelty and nonobviousness and not trying to determine if a process is statutory.
The Federal Circuit’s opinion in this case just creates new confusion over what it means to be “tied to a particular machine.” Already, we are seeing collateral damage to software-based patents, with the Patent Office denying patents and district courts striking down granted patents.
Other proposed tests (“method of doing business,” “abstract/applied,” “practical application” or “useful, concrete and tangible,” or “technological”) portend more decades of uncertainty, as the Patent Office Board of Appeals and Interferences and the Federal Circuit try on a case-by-case basis to apply those terms to determine where the boundary really lies.
Judge Dyk’s concurrence in this case provides an excellent discussion of how this test was the understanding at the time of the Patent Act of 1793, on which the current statutory language is based, of when a process is statutory subject matter. Although this test is over two centuries old, because the concepts of “machine, manufacture, or composition of matter” have evolved with technology, so has this test. It provides a good and clear line for even the most cutting-edge technology.
At the same time, this Court should take this opportunity to restate three principles related to that test:
Because the claims at issue in this case are not limited to using or making a machine, manufacture, or composition of matter, they are not statutory subject matter, and the decision below should be affirmed, but on the modified grounds stated above.
- Claims drawn to the other categories (machine, manufacture, or composition of matter) are always statutory subject matter.
- A claim that covers both statutory and nonstatutory embodiments (under the broadest reasonable interpretation of the claim when read in light of the specification and in view of one skilled in the art) embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.
- While using a machine may make a claim statutory, if the method itself is known in the prior art, simply adding a machine to perform the method does not necessarily make the claim nonobvious.
Like we can rely on the USPTO to check carefully for those two things. Not.
We'll look a bit deeper at his views in a minute. First, a bit more about him.
His bio says he
began teaching at the University of Utah beginning in 1984, teaching computer science, and inexplicably to me, computer law. By that I mean, I am puzzled about someone who is not an attorney being asked to teach any kind of law. Maybe patent law, since he is a patent agent and a technical expert in that area of law. Well, who am I to tell Utah what to do? But doesn't this comment of his from some years ago look like legal advice about US Copyright Law to you? I think it might lead a reader to at least think he was a lawyer. And there is no disclaimer or even a profile to let you know he's not a lawyer, not that I could find.
I may not be the only person confused into thinking he was an attorney.
In the Preface to his book,
"Legal Protection of Digital Information," he says he was set to be used as a technical expert by
Caldera in its case against Microsoft, but then it settled, leaving him with lots of time and a lot of research, and so he wrote the book:
In January 2000, I was expecting to spend the next few months at the trial of Caldera's antitrust suit against Microsoft as Caldera's technical expert. About a week before the trial was to start, the parties settled and I found myself with unanticipated free time. Since I was scheduled to teach my computer law course in the fall, this was a perfect opportunity to expand the notes to cover the whole course. This book is the result.
Summit Law Group was one of the firms Caldera used in that lawsuit. Another was Snow Christensen, where Ryan Tibbitts worked prior to becoming general counsel to SCO Group. At the time, Caldera was under the Canopy Group umbrella, with Yarro still there. You can verify the law firms by looking at the certificate of service in this Caldera filing [PDF], or any of them. Hollaar also thanks Lineo and Summit for their money:
But my efforts have gone well beyond this book. Rather than just publish the lecture notes, I decided that I would put all the backup material -- cases, legislative history, and everything else that I referenced -- on a Web site (www.digital-law-online.info) along with the lecture notes. This information would be available to everybody, at no charge. Summit Law Group, which was one of the legal counsels to Caldera, and Lineo, which is a spin-off of Caldera, provided grants to the University of Utah so that I could hire research assistants to help me put together the material for the class and the Web site.
Finally, Summit Law Group and Lineo provided important support for the development of this book and its Web site. Matt Harris and Ralph Palumbo recognized the importance of having this material widely available and made it possible. Lineo was, of course, an offshoot of Caldera, spun off in 1999 as a wholly owned subsidiary. Why would it want Hollaar's web site? For what business purpose would it fund it? According to a report in April of 2002, by Maureen O'Gara, Lineo had run out of money and was bouncing paychecks. If true, maybe paying professors to put up web sites isn't a viable business model? I am starting to wonder how long ago the idea of suing over the GPL first began to stir.
Harris replaced Bryan Sparks as CEO of Lineo in 2001, by the way. He started out as
VP and General Counsel at Lineo when it began. Sparks founded Caldera, Inc. in 1994. Harris worked for Summit Law Group also, and in fact he was a founding member (more Lineo history at that link), and he was the
lead technical lawyer for Caldera in its lawsuit against Microsoft. You'll find Palumbo in the Caldera v. Microsoft filing also. You can find Hollaar's other amicus brief submitted by him and IEEE-USA in the Bilski case, the one he filed earlier with the appeals court, on his page of papers.
Starting to feel like the Ozarks, where everyone is creepily related to everyone else you keep bumping into? The point is, there is a connection between Hollaar and Caldera/SCO that goes back years.
The Hollaar Amicus Brief in Bilski:
But let's look at his ideas on what he feels the Supreme Court should do about patents in a bit more detail. In his brief to the Supreme Court, he argues, or more accurately his lawyer argues for him, for software patents, and one argument relates to whether software is math:
One argument the opponents of patents for software-based inventions make is that software is mathematics, and mathematics is not patentable. 28 But that not only ignores how software-based inventions are generally claimed, but is bad computer science. Claims that include data structures in random-access memories, input devices such as keyboards or mice, screen display devices, or clocks and time-outs, common in software-based patents, are no longer equivalent to pure mathematics. ... No doubt some of you will have responses to his view.
28 Benson, 409 U.S. 63, (1972) is generally cited for the latter proposition. But in most instances, the correspondence between computer programs and mathematics is merely cosmetic. For example, the equation E = MC 2 expresses a relationship between energy and matter first noted by Einstein, while the computer program statement E = M * C ** 2 represents the calculation of M time C raised to the second power and then assigning the result to a storage location named E. It is unfortunate for purposes here that the early developers of programming language made their calculation-and-assignment statements look like mathematical equations so that they would seem familiar to scientists and engineers. But the common programming statement I = I + 1, which increments the value stored in location I, is essentially nonsense as a mathematical equation. Similarly, a computer program is a series of calculation-and-assignment statements that are processed sequentially, not a set of simultaneous mathematical equations that are solved for their variables.
And he mentions in passing FOSS licenses and the community's opposition to patents in a way that I think will turn you purple:
31 Many programmers forego trade secret protection for their source code by making it available under a “free” or “open-source” license. These licenses, which are backed by copyrights of the source code, often require anybody improving the program to make their modifications available under the same license. But that does not keep someone from taking any new ideas in the program and incorporating them in a program while keeping their source code as a trade secret, because copyright does not protect ideas. Although most open-source programmers are opposed to software patents, this likely stems from a time when many of their programs were “clones” of existing proprietary programs (the original “free software” program was to be a reimplementation of the Unix operating system), and a patent could prevent such cloning. In this respect, they are like developing countries, which downplay intellectual property protection until they start producing their own innovations, at which time copyrights and patents become more interesting. The United States did not protect the works of foreign authors until 1891, when protection of American authors’ works in foreign countries became important. How can a professor of computer science not know that software didn't start out as proprietary? That came second, not first. And talk about missing the point of the open source development model, where sharing knowledge is deliberate. You could call it the scientific method. It's like doctors sharing their knowledge from experiments and such, so other doctors don't have to repeat what they've already done. It's not about keeping that knowledge secret; the whole point is to share, so that the state of the field can quickly advance. The FOSS community shares on purpose, in order to share knowledge, also so the knowledge remains available to all. It has nothing to do with cloning anything. "GNU's not Unix" is a meaningful phrase. And the GPL in no way downplays copyright protection. It is based on copyright law, and the GPL is enforced using copyright law, so his footnote is grossly inaccurate, not to mention offensive and demeaning, to me anyway.
Here's what he thinks the Supreme Court should do in the Bilski case: make software patentable as a method, using a process claim instead of a machine claim:
Using a process claim rather than a machine claim, coupled with the Federal Circuit’s developing law on full-scope enablement, applicants will specify in the claim the particular steps of their claimed method that creates the special-purpose computer, but not use language overly broad lest their patent be invalid for lack of enablement. Unlike claiming the invention as a machine using functional elements, there will be no need for a person wanting to know the scope of the claims to guess at what structure in the specification defines each claim element, how broadly that structure should be read, and what are its equivalents. I'm not a lawyer, not even a patent agent, but if "There is no indication that Congress intended that anything that can be described as a series of steps should be entitled to patent protection", then how can any court, even the highest court in the land, say it should be so by judicial fiat? Wouldn't it be up to Congress to make that determination?
This Court should support the use of process claims for software-based inventions because they represent a way of more clearly claiming what would otherwise be statutory: the special-purpose machine programmed to perform the method. ...
Updating the Statute of Monopolies’ formulation to use current terms from the patent statutes, we get a clear statement of when a process is patentable: A process is patentable subject matter when it involves making or using a machine, manufacture, or composition of matter.
Although this test is over two centuries old, because the understanding “machine, manufacture, or composition of matter” has evolved with technology, so has this test. It provides a good and clear line for even the most cutting-edge technology. With respect to “using,” that means that at least one step of the claimed process is performed by a specified machine or the person performing the method uses a specified machine, manufacture, or composition of matter in order to perform at least one step of the claimed process.
Software-based inventions would be statutory under this test as a method if they are claimed as running on a digital computer, which would clearly be “using a machine.” The method claims would not be for “making a machine,” since as noted previously, such a claim would have steps such as “loading the program implementing the method from a storage device into the instruction-storage memory of the computer, so that the instructions implementing the steps of the method can be executed,” and would most likely be obvious in light of past techniques for loading programs into a digital computer to be run.
As noted above, sometimes courts have applied the rule for whether a process is patentable to machines, manufactures, and compositions of matter. It is worth restating the rule that: Claims drawn to the other categories (machine, manufacture, or composition of matter) are always statutory subject matter. Machines, manufactures, and compositions of matter are all concrete things. They will never be “laws of nature, physical phenomena and abstract ideas,” the exceptions to statutory subject matter.
There is another rule that needs restating: A claim that covers both statutory and non-statutory embodiments (under the broadest reasonable interpretation of the claim when read in light of the specification and in view of one skilled in the art) embraces subject matter that is not eligible for patent protection and therefore is directed to non-statutory subject matter.
This means that in the broadest reading of the claim, it must involve making or using a machine, manufacture, or composition of matter....
This new test could be satisfied by an applicant by simply reciting in the claim’s preamble that the method operates on, or uses, a digital computer system. But another principle should be make clear: While using a machine may make a claim statutory, if the method itself is known in the prior art, simply adding a machine to perform the method does not necessarily make the claim nonobvious.
Even if the claim does not explicitly recite a machine, it may be statutory if it recites elements that require a machine. So, for example, limiting a claimed method to a “relational database management system” would also make it statutory, since such a method can only be performed on a machine with such software.
The claims in Diehr would be statutory subject matter, but whether they are patentable would depend on whether their method was nonobvious in light of its use of a well-known equation. Novelty, nonobviousness, and enablement should be the primary tests for patentability, not some long debate with the examiner and the courts over whether the claim recites a “particular” machine after which the examiner “throws in the towel” and grants the patent.
There is no indication that Congress intended that anything that can be described as a series of steps should be entitled to patent protection. Yet for software-based inventions, claiming by describing the particular steps of a method provides the clearest notice of what the inventor regards as his invention.
The question is where to draw the line. It is important that such a line be drawn to correspond with reality, or problems will result in applying the test. If the test for a statutory process is simply that it produces a “useful, concrete, and tangible result,” it would open the floodgates to patents on just about anything done by man. Tests like the Federal Circuit’s “transformation or machine,” or whether the process is “abstract” or “technological” or a “business method” would mean years and years of litigation to determine where those vague terms actually draw the line.
Instead, the test should be the one that has existed from the start of patent law, updated to use today’s statutory terms: A process is statutory subject matter when it involves making or using a machine, manufacture, or composition of matter.
Here's a Preface from his book, written by a judge, showing the Hatch connection:
I've known Lee Hollaar since I joined the Senate Judiciary Committee as its Chief Intellectual Property Counsel. Committee staff and its former chairman, Senator Orrin Hatch, have benefited from his advice for a number of years. During his sabbatical in 1996-97, he worked with me on Internet, copyright, and patent issues as a Committee Fellow. His bio also gives Hollaar "credit" for the introduction of The INDUCE Act, the
Inducing Infringement of Copyrights Act, introduced by Senator Hatch, a statute blasted from here to kingdom come and mocked as one of the worst statutes ever to be introduced. It appears to have been yet another RIAA brainstorm to try to kill off file sharing. Hollaar puts coming up with the INDUCE Act in his bio:
It's unlikely that there is anybody else with his qualifications for writing this book. He has been programming digital computers since 1964, has a Ph.D. in computer science, and has designed and implemented computer software, computer hardware, and data communications networks. He understands the law both from his studies, as a patent agent, and as a key technical advisor in a number of important court cases. He has an insider's view from his work with Congress and the courts. And he is able to pull this diverse background together to bring about an understanding of the important issues in computer law today.
I've always enjoyed and learned from my discussions with Lee and now, with this book and his Web site, you can too.
Edward J. Damich
United States Court of Federal Claims
He played major roles in adding two words to the vocabulary of intellectual property law: You can read Larry Lessig on Hollaar and the INDUCE Act
"Inducement" was recognized by the Supreme Court in its unanimous Grokster opinion. The concept of liability for inducement of copyright infringement was revitalized in his paper Sony Revisited: A new look at contributory copyright infringement, and refined in his amicus brief in the case. The paper also led to the introduction of the Induce Act in the 108th Congress.
- "Foreseeability" as a limit on doctrine of equivalents in patent law is the heart of the Supreme Court's Festo opinion. It was proposed in the amicus brief whose filing he supervised as chair of IEEE-USA's intellectual property committee.
What my mind is trying to wrestle with now is this: did SCO think that they could use his ideas, at a minimum, to kill the GPL? Looking at his bio, would that be beyond conceivability?
Oh, and speaking of small worlds, Hollaar's bio says "Professor Hollaar is currently working on a new approach to patent reform and laws governing shrink-wrap and click-on licenses." Speaking of Psystar. And look at a comment submitted, according to Terekhov, by Hollaar to the FSF during the rewriting of the GPLv3:
This is not a correct statement of copyright law, at least in the
United States. With respect to "propagate", it is likely a tautology
because of the defintion of "propagate" covering only things "that
require permission under applicable copyright law". But for "modify",
17 U.S.C. 117 permits the "owner of a copy of a computer program" to
make an "adaptation" in particular circumstances, and makes it clear
that making that adaptation does not "infringe copyright if you do not
accept this License." It also does not seem to recognize the "first
sale" doctrine codified in 17 U.S.C. 109, that permits the transfer of
a lawfully-made copy "without the authority of the copyright owner".
Perhaps the interplay between the definition of "propagate" and this
section covers it, but it is certainly not made clear and, in fact,
misleads one in thinking that the only way to redistribute a lawful
copy is to accept the License.Sounds familiar, doesn't it? A little like Psystar's position, isn't it? A lot like Psystar, huh? Coincidence? I don't know. But it's eerie, to me.
Here's another weird connection. This paper of his from years ago, Congress: Don't censor the internet, but help users avoid unwanted material seems to tie in with Ralph Yarro's filtering of the Internet ideas, found in his CP80 Foundation's agenda. I note in this
2006 press release that a couple of Brigham Young University professors of law are associated with CP80.
The concept, as I understand it, is that the Internet be divided into two parts, one for smut, with its own port, and the other for the rest of us on the standard HTML port 80 -- or at least the organization seems to think that is the only port the rest of us use -- and there would be penalties for smut straying from its own, segregated port to the Internet that would be designated for the rest of us - setting up a kind of red light district on the Internet. A couple of years ago, CP80 wanted to regulate free wireless, because children could view smut, according to the Deseret News:
Beyond that, however, is that many teens know how to get around filters in the home computer — or know where they can get open-access wireless Internet "where they can watch porn all day long," said Yarro, who heads a group called CP80, which advocates congressional action to set up family-friendly Internet groupings that would filter out porn Internet addresses. What kind of kids are they raising in Utah? Where are the parents that children there can watch anything all day long without the parents knowing and preventing it?
This kind of parents, maybe, watching pornography all day long themselves, I gather? The Deseret News quotes a Harvard study that found Utah leading the nation in subscriptions to online porn.
CP80 wanted to regulate wireless, and they had a hearing in Utah where the legislators struggled to understand the tech, according to the Deseret News again:
Among the proposals were penalizing those who leave their wireless networks open and rewarding Internet providers that self-police access to pornography. This is the real problem, the foundational issue here, and while I dislike pornography as much as anyone could, the truth is, one would surely hope that no laws would be passed by those who don't even understand the tech. Libraries, for example, generally have open wireless. CP80's plan didn't take off, so Yarro took the fight to ICANN, where it was discussed at least up until April. You'll find a summary of the public comments here. And this is the outcome so far:
The discussion in the Public Utilities and Technology Interim Study Committee was often technical, with committee members having to be brought up to speed on various terms and applications.
"My brain is on the edge of frying, trying to understand" the technology involved, said committee co-chairman Sen. Scott Jenkins, R-Plain City.
The current ICANN Bylaws provide that any group of individuals or entities may petition the Board for recognition as a new or separate constituency, in accordance with Section 5(4) of Article X. Such a petition must explain (1) why “the addition of such a Constituency will improve the ability of the GNSO to carry out its policy-development responsibilities” and (2) why “the proposed new Constituency would adequately represent, on a global basis, the stakeholders it seeks to represent.” That's the last I've heard.
Oh, one last thing. Guess who else works with CP80? Brent Christensen. He's an attorney also, one who once worked for Canopy Group as legal counsel and who, along with Yarro, was accused by Canopy Group of siphoning off millions by taking advantage of an impaired Ralph Noorda, if you remember all that, accusations they both denied. They were ejected from the building by Canopy lawyers, in one dramatic moment, and then litigation ensued, if you recall. Here's the settlement that resulted.
The ICANN Board has now received a total of four formal petitions from prospective constituencies, including the subject of this forum - the CyberSafety Constituency. At the direction of the Board, the ICANN Staff developed a two-step process for potential new constituencies to follow. The proponent of the CyberSafety Constituency completed the first step of the process on 20 October 2008 by filing a Notice of Intent to Form a New Constituency. The proponent of the CyberSafety Constituency completed the second step of the process - submission of a New Constituency Petition and Charter on 23 February 2009 - see CyberSafety Introduction Letter to Petition and Charter Document and CyberSafety Constituency Petition and Charter (23 Feb 2009-Redacted).
Community comment on new constituency petitions and charters is an important component of the Board's evaluation of these petitions and will be used to inform the Board's decisions to approve, reject, or, at its option, to recommend any alterations or amendments to the various submissions....
The ICANN Board is likely to consider all the relevant community input and move forward with guidance regarding all the new constituency submissions, including the CSC, as soon as practicably possible. Any decisions with respect to the approval of the new constituency charters will likely take place in the context of the GNSO Improvements implementation processes.
See what I mean about the Ozarks? And what is the take away? For me, it's the growing realization that SCO's quest was ideological, not just financial, and the dream was not confined to anything so constrained as just a lawsuit against IBM or even against Linux end users. I think they meant to destroy the GPL for ideological reasons. Daniel Wallace wrote to me, early in Groklaw's existence, and he warned me not to support the GPL, telling me it was going to be destroyed. I took it at the time as a friendly warning that I might get hurt. Later, he attacked me fairly regularly all over the place, as, for example,
here, and I didn't find it so friendly after all. He quoted from Hollaar too, by the way, and he left antiGPL comments, like this one in 2004, we all believed, although he tried to deny it was him but which all the regulars immediately recognized as him, or at least an amazing clone who wrote exactly like him, in which he predicted the death of the GPL and of free software. You can read his views on why the GPL deserved to die in this letter to the editor published by Maureen O'Gara -- who else? He later filed a lawsuit against FSF, claiming -- my favorite allegation of the entire SCO saga -- that FSF was guilty of price fixing, of all amazing things to claim about them. His litigation efforts were doomed to fail, and they did.
When Terekhov posted to the gnu-misc-discuss list in November of 2006 a copy of the appellate ruling that brought Wallace's antitrust litigation to an end ("The GPL and open-source software have nothing to fear
from the antitrust laws."), Lee Hollaar was there and he commented in the thread, subtly making fun of the judge for writing Williams at one point in the order instead of Wallace. Terekhov was less subtle. The goal, as mentioned here, was that the GPL be made somehow sort of public domain. Here's Terekhov in the same discussion on the GPL and first sale, quoting from Hollaar:
Under US Code Title 17, an owner of a copy "lawfully made" has a right
to distribute it "WITHOUT THE AUTHORITY OF THE COPYRIGHT OWNER". 17 USC
109. The GPL requires to surrender that right as well when it talks
about "offers" to provide source code, etc. To quote Lee Hollaar, Blah, blah. There's plenty more where that came from. Sound like Psystar to you? At a minimum it sounds exactly like troll comments that get posted to every Psystar article I publish.
As for the reproduction right (1) implying the distribution right (3),
it's not an implication, but a special rule in United States copyright
law spelled out in Section 109. (It is commonly called "first sale,"
but the actual parameters of the rule are specified in the statute
and not some lay reading of "first," "sale," or even "first sale.")
The heart of the provision is its first sentence:
Notwithstanding the provisions of section 106(3), the owner of a
particular copy or phonorecord lawfully made under this title, or
any person authorized by such owner, is entitled, without the
authority of the copyright owner, to sell or otherwise dispose
of the possession of that copy or phonorecord.
And in 2003, "alexander" posted this comment on Groklaw about how to work around the GPL, a la Psystar, as I read it, and included a link to
the SCOX Yahoo! message board, to comments by Alexander Terekhov in support of SCO Group, making the circle complete.
I know what will interest you the most is the Hollaar brief, particularly the arguments on software and whether it is math, but at least you will understand from all this why, despite not knowing exactly how all these pieces fit together, I have come to suspect that the same folks behind SCO are somehow behind Psystar too, and that at its most fundamental, it was and still is an ideological attack on the GPL.
Update: I'm informed by a member of IEEE that IEEE-USA is not the same thing exactly. It's a unit within IEEE which concentrates on US intellectual property, and it may or may not reflect the IEEE's views. From the IEEE-USA's position paper on intellectual property in 2007, which he sent me, it explains the difference:
This statement was developed by the Intellectual Property Committee of the IEEE-United States of America (IEEE-USA) and represents the considered judgment of a group of U.S. IEEE members with expertise in the subject field. IEEE-USA is an organizational unit of the Institute of Electrical and Electronics Engineers, Inc., created in 1973 to advance the public good and promote the careers and public policy interests of the more than 220,000 technical professionals who are U.S. members of the IEEE. The positions taken by IEEE-USA do not necessarily reflect the views of the IEEE or its other organizational units. The paper succinctly expresses this view on patents:
We specifically recommend the patenting of computer program-related inventions that meet the strict statutory criteria imposed for patents. Engineering work product in the computer arts that meets the statutory criteria should be eligible for patenting - without discrimination - just as inventions in any other technology. If the standards for patents were strict, we wouldn't be in the mess we're now in, nor would there be a Bilski case.
However, we also believe that improperly granted patents in any technical area hinder industry and the advancement of technology. It is important to ensure that U.S. Patent and Trademark examiners provide high quality examination of computer technology claims. We specifically recommend:
1. That the U.S. Patent & Trademark Office take all necessary steps to improve the collection of prior art used by patent examiners in making patentability decisions in computer program-related inventions.
2. That the U.S. Patent & Trademark Office take all necessary steps to raise and maintain the level of accessibility and search methodology in computer program-related examining to help ensure that only quality patents are issued.