[PLUG-TALK] Software Patents

M. Edward (Ed) Borasky znmeb at cesmail.net
Mon Feb 14 03:32:33 UTC 2005


Jeme A Brelin wrote:

>
> I think you have been brainwashed into believing the current 
> interpretation of the Constitution's one tiny provision for the 
> POSSIBILITY of exclusive rights is both a mandate and only possible to 
> interpret in one way.

How exactly has this brainwashing been carried out? By whom? What 
evidence do you have? Last time I looked, brainwashing was a crime, and 
if you have evidence of such crime, I'd sure like to pursue, if 
possible, my rights under the Constitution we're discussing.

> Let's take a look at the clause which provides for both the Copyright 
> Act and the creation and maintenance of the Patent Office.
>
> [Each Clause in this Section is implicitly prefaced with the phrase 
> "The Congress shall have the power".]
>
> Clause 8: To promote the Progress of Science and useful Arts, by 
> securing for limited Times to Authors and Inventors the exclusive 
> Right to their respective Writings and Discoveries;
>
> [Note that this clause does NOT cover the creation of either trade 
> secret law (which is mostly the law of the several states, but not a 
> concern of federal government) nor the provisions for trademark -- 
> both of which are lumped into the unnatural category of "intellectual 
> property".]
>
> The monied interests have run a highly successful propaganda campaign 
> to promote and embed a particular interpretation of this clause in the 
> minds of the public.  I believe this interpretation, while used 
> conveniently in the halls of power, is not at all consistent with the 
> wording nor with the intent of the clause.
>
Said monied interests are also running a highly successful legal 
campaign to enforce rights guaranteed to them by laws passed by 
"Congress and the several States." I don't, for example, have the right 
to rip off copyrighted CDs or DVDs. I don't happen to want to do that, 
so this doesn't really bother me.

>
> The claim that the Copyright Act should cover works of fine art is 
> completely unfounded.

Then argue that case in a court of law, not in an email forum. You can't 
win anything here. You can't lose anything here either. :)

> The beaux arts include poetry, sculpture, architecture, (decorative) 
> painting, and even acting.  It is and always has been among the 
> primary societal benefits of the fine arts to comment upon culture and 
> society -- to act as a mirror that reflects the way we live, think, 
> and act -- so that we might give pause and reconsider or appreciate 
> the choices we make.  


> The restriction of the distribution (and derivative synthesis) of fine 
> arts restricts society's ability to reflect upon itself and make 
> subtle progress.  Instead, the law of today promotes originality by 
> punishing modification of existing works of art.  The result is a 
> constant push to the extremes of audacity and taste because refinement 
> is potentially derivative and legally actionable.

I suspect this has more to do with freedom of speech than copyright law. 
In any event, some notably silly legal battles have taken place 
regarding parodies, trademarks, etc. For example, consider the 
contortions the Hormel folks go through every time we Internet folk 
complain about spam, or the Tillamook Smoker vs. Tillamook Creamery fight.

>
> Patent can also be interpreted narrowly and effectively without any 
> changes to the Constitutional provision.  

And it can be interpreted as it currently is, at the discretion of the 
courts. But I don't see any major political party objecting to this 
instance of the courts legislating, if indeed it is an instance of such, 
while I do see one major political party objecting to Roe vs. Wade as an 
instance of courts legislating. Personally, if I were a judge, I'd 
resent very much having to devote my time and resources to battles of 
commerce; I'd much rather decide cases where *people* were hurt rather 
than the fictitious persons known as corporations were hurt. Battles of 
commerce have a way of working themselves out via the invisible hand, 
after all.

>
> With this understanding, software CANNOT be the subject of patent. 
> Patent restricts the production and distribution of an invention in 
> exchange for the public's ability to produce and distribute a detailed 
> description of the invention and how it works.  Software is... soft. 
> There is no difference between the invention itself and a complete and 
> detailed description of the invention and how it works.  Hence, the 
> exchange cannot take place and the barter of patent is inapplicable.
>
That argument has been going on for years. Indeed, one cannot, 
supposedly, patent a mathematical formula. I suspect you're right -- 
that software cannot be patented, because it is in essence a 
mathematical formula. There was a time when the prevailing opinion was 
that software could not be copyrighted either. I'm not sure when that 
changed or how it changed.

> The result is a select few that stifles innovation in order to squeeze 
> every drop from their state monopolies.
>
"There's nothing surer, the rich get rich and the poor get poorer." :) 
I'd show you the equations that explain why this happens, but I'm trying 
to patent them. :)

>> Given the notable lack of success of both conservative-sponsored and 
>> liberal-sponsored amendments in the past 30 years or so, I'd say 
>> intellectual property and its associated "battery of white-lipped 
>> attorneys" is with us for a while.
>
>
> As I've demonstrated here, we don't have to modify the Constitution in 
> order to modify our implementation of the so-called "intellectual 
> property" protections.

Ah, but if you want to nullify one or more of the myriad intellectual 
property laws that have been passed by Congress and the several states, 
that's *exactly* what you have to do -- either have the Supreme Court 
rule the laws are unconstitutional, which means decades of legal 
arguments and expenses, or amend the Constitution, which is virtually 
guaranteed to fail.

We've had runs at an Equal Rights Amendment, a Balanced Budget 
Amendment, Flag Burning, Abortion, etc. I think the Equal Rights 
Amendment actually made it through Congress, but never got 3/4 of the 
states. Our illustrious Mark Hatfield stopped the Balanced Budget 
Amendment in the Senate, and I'm not sure where the others stand. I 
don't think you'd even be able to get an amendment banning software 
patents introduced in Congress.



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