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Question on software copyrights v patents | 280 comments | Create New Account
Comments belong to whoever posts them. Please notify us of inappropriate comments.
Question on software copyrights v patents
Authored by: Tkilgore on Sunday, September 02 2012 @ 12:31 PM EDT
I will take a stab at this. You say:

"Perhaps software patents aren't the correct solution to this problem, but
I think you have to make a choice:"

Yes, you do. True enough.

Continuing:

" 1. Decide that the ideas behinds software ARE worthy of protection, in
which case there needs to be a mechanism analogous to literary 'copyright' in
which
the detailed concept of a book is protected (but not the generic concept).
" 2. Decide that the ideas behinds software ARE NOT worthy of protection.
At this point, it would seem that advocates of FOSS should be trying to get rid
of both software patents AND copyright and have software be public domain.
Otherwise, [...]"

There is only one choice, at least in the opinion of "advocates of
FOSS." Ideas can not be protected because this is a matter of thought. The
law, then, is supposed to make property out of one's thoughts? No. And unlike
the protection of literary works, there is the little matter of _functionality_
which factors in, here, which is not relevant at all in the case of literary
works. The only way even to try to protect functionality is with patents. But
then we are back again at decreeing that thoughts are property which can be
bought, sold, and regulated. We are in the opinion of most FOSS people
(certainly me) at that point way off the track, into subject matter which needs
to be excluded from the patent system, period. Otherwise, we start patenting
mathematics and physics and farm these subjects out to big companies and quit
teaching them in school.

Then you continue with

"you are just setting up a situation in which big companies"

will do very bad things. Well, big companies are in the position to do very bad
things if they want to. That will never change. All that one can do is to
minimize the damage by having an intelligent regulation of "intellectual
property" instead of a stupid one. The problem is to minimize the extent to
which those "big companies" (and others, too) can constrain and/or
enslave the rest of humanity.

As to being opposed to copyright, FOSS depends upon copyright, too. Perhaps in
some kind of utopia which will never come to pass, some might think that
copyright will "wither away" (intentional association, here, with
someone else's vision of an ultimate utopia), but in the real world that will
never happen. Meanwhile, copyright can be used for good purposes as well as bad,
for example by the GPL license.

Moreover, you fear that "big companies" can steal the ideas of FOSS
people. First, ideas can not be stolen, unless one will regulate what people
think. This applies to people working in "big companies" as well as to
individuals working in a basement. Second, this is a different thing from
stealing the code, which is protected by copyright. Third, it is not easy to
pull off such a "theft" if everyone is free to do the same thing, as
already developed in a FOSS environment. For, then someone can "steal"
the idea right back again.

Moreover, the history of Linux and other very large FOSS projects up to this
time also is a demonstration that success comes nevertheless, and the rules of
the whole industry have had to be changed to take that success into account.
Taking the continued development of the Linux kernel as one example, it is clear
that there is no "big company" in the world which can bring as much
resources to the development of any similar project as what is already being
done.

So where, exactly, is the problem?

[ Reply to This | Parent | # ]

Question on software copyrights v patents
Authored by: Anonymous on Monday, September 03 2012 @ 09:04 PM EDT
I think that copyright law already provides a decent balance
in that it protects some "structure" but it doesn't protect
the most basic "idea".

So, copyright doesn't protect the idea "a word-processing
program", but it might protect the particular structure used
to implement YOUR word-processing program. I really prefer
not to think about whether copyright protects structure, but
rather think of it as: similarity of structure may be
evidence of copying-with-obfuscation.

In software copyright, there's an additional principle, and
it's crucial: copyright protects "expression" but NOT
functionality. So if both word-processing programs have a
copy-paste buffer, that's not going to get you into
copyright trouble even if both have functions named
WriteBuffer and ReadBuffer. It's the places where software
designer have lots of freedom of choice where their choices
will be protected by copyright.

There's a similar principle in broader copyright law.
Remember how facts and ideas are not copyrightable? Well,
if there's only one or very few reasonable ways to express
that fact or idea ("Jim is 37", "Jim's age is 37", "Jim
is
37 years old", "Jim was born 37 years ago", and that's about
it), then you can use any of those expressions without fear
of infringing anyone's copyright. This keeps ideas free,
while protecting creative expression.

Similarly, to the extent a program's structure is strongly
determined by the problem domain, the structure will not be
protected - which is the correct result, because the
appearance of the same structure in another program isn't
evidence of copying. But if the problem can be solved many
different ways (all more or less equally good) and you do
it the exact same way, that's suspicious. Just changing a
few variable names and whitespace is not going to let you
escape prosecution.

[ Reply to This | Parent | # ]

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