[PLUG-TALK] Software Patents
Jeme A Brelin
jeme at brelin.net
Mon Feb 14 11:37:55 UTC 2005
On Sun, 13 Feb 2005, M. Edward (Ed) Borasky wrote:
> 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.
I'm curious to know what laws you think would be broken by brainwashing of
any type.
But the kind meant here is the constant repetition of statements
contradictory to available facts until the public believes the facts
reflect the statements. The law doesn't actually reflect the beliefs of
the people in a huge number of cases. [My new favorite is the belief that
the Constitution guarantees the right to vote federally. It doesn't.]
> 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."
Well, are they? The campaign is certainly successful in the public mind,
but the facts don't really reflect that perspective.
These interests have found a way to work the system. They only attack
opponents that cannot afford to pose a quality opposition (informed, well
reasoned and argued) and they still lose quite a bit. Consider that the
New York Times posted the same article linking DeCSS as 2600 Magazine, but
only 2600 was sued... and only then in the court of a judge that was
recently appointed to the bench from the firm that consulted the plaintiff
in DVD matters. And still the decision was only favorable on the surface.
> 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.
Actually, that's exactly the kind of brainwashing I mean. You DO have the
right to copy copyrighted CDs and DVDs. And there are respected legal
minds who believe you have the right to distribute those copies freely in
MOST contexts. Those arguments don't make it to the courtroom, however.
For instance, in Bertelsman et al. v. Napster, the attorney for the
defense (former special prosecutor in Justice v. Microsoft) filed a
countersuit arguing two very strong statements: The RIAA illegally pools
their copyrights (if the courts found that to be true, it would be an
abuse of copyright and the ONLY legal remedy for abuse of copyright is
stripping all copyrights from the guilty). All non-commercial copying is
not only outside the scope of the copyright act as written, but protected
under the first amendment. Neither of those arguments were ever heard in
open court because soon after the countersuit was filed, Bertelsman
purchased Napster and the suit was settled out of court. This came AFTER
a preliminary injunction was granted and Napster's only possible source of
revenue was cut off for the duration of the trial (and after, should they
unsuccessfully defend the suit). In other words, Napster couldn't have
gone on functioning if the RIAA had simply taken the case to court. But
they couldn't risk Boies' countersuit, so they bought the defendant.
>> 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. :)
There are several good reasons why I couldn't possibly win such a case.
First, I would have to be in a position to have standing to raise the
challenge. That means I would have to be sued by a copyright holder or
brought up on criminal charges of infringement. Then I would have to not
only lose my case in the lower court, but each level of appeal would have
to be granted and then heard and then lost so that I could bring the case
before the U.S. Supreme Court who would then have to grant certeori.
This is extraordinarily unlikely. Furthermore, the Supreme Court wouldn't
really even have the option of taking my side. The legal system isn't the
nice little logical package that we programmers would like to believe.
The tradition often has more power than the law or even the precedent
decisions. Successfully arguing a novel claim against an established
doctrine is simply unheard of. I can't think of a single instance of it
ever happening. That which is established just can't be unestablished --
certainly not after standing for a century unchallenged -- EVEN IF IT IS
WRONG LEGALLY. That's something else most people just don't understand
about the so-called justice system.
> 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.
These are trademark issues and have nothing at all to do with copyright.
Trademark legislation is an exercise of powers granted by the commerce
clause (Article I Section 8 Clause 3) not the copyright clause (Article I
Section 8 Clause 8).
>> 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.
You wrote that the Constitution would have to be changed for a fundamental
change in the patent law. I showed that that's not true.
> But I don't see any major political party objecting to this instance of
> the courts legislating,
Courts don't legislate. The reason patent and copyright law exist as they
do is entirely the fault of the congress.
> while I do see one major political party objecting to Roe vs. Wade as an
> instance of courts legislating.
Roe v. Wade is an equal protection case (Amendment 14). I think pretty
much all equal protection claims are weak and subject to controversy
because the 14th Amendment itself is weak and quite rightly subject of
controversy (since it was passed while ten states were locked out of the
congress as part of the civil war reconstruction).
The Constitution of the United States of America was not written with much
concern at all for the rights of the people. In fact, even the checks and
balances we are told in school are so fundamental to the design of the
document aren't really in the document at all. There is no mechanism in
the Constitution that keeps the congress from overstepping its bounds in
Article I Section 8, for instance. We say today that the courts can
declare laws unconstitutional (somehow outside the power of congress), but
that power of the court is NOT in the Constitution and was simply
appropriated by Justice Marshall when he found the opportunity and the
perceived need. Have you ever asked yourself why the rights of the people
had to be inserted as AMENDMENTS in the first place? And you'll note that
only the political rights are mentioned with absolutely no comment on
social or economic rights.
As a result of this mess, there really is no way to ensure civil rights.
Congress doesn't have the power to make the states recognize civil rights.
Only through Marshall's power grab is there anything like a federal power
to halt the violation of civil rights by a state.
> Personally, if I were a judge, I'd resent very much having to devote my
> time and resources to battles of commerce;
Some judges seek the bench to do exactly that.
> 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.
You certainly can't mean Smith's "invisible hand" because that was a force
that supposedly equalized access to resources and products of labor while
battles of commerce pretty much always end in a tighter control on access
by a smaller number of people.
> 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.
Actually, this is a different argument. Mathematical formulas cannot be
patented because they are seen to be statements of fact (and so they can't
be copyrighted either). I'm actually looking into starting a project with
some mathematicians at my university to specifically challenge some
software patents on the grounds that they are nothing but mathematical
algorithms. More on that some other time, I think, after we've made some
progress and gotten some stronger legal backing.
> 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.
It's part of the Copyright Act of 1976 and some strange court decisions in
the early 1980s. There are some people lobbying today to force a suit
that could challenge the copyright status of object code, but I don't
think they're going to get anywhere for the reasons I mentioned above.
>> 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. :)
Sure sure. But a stronger and stronger case is being made that patent and
copyright do the exact opposite of their stated intent to encourage
innovation and the spread of information. If anything is likely to turn
the tide, it is proof of this.
>> 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.
No, amending the Constitution is absolutely not part of the path to
resolving that issue. In fact, I can't imagine what kind of amendment
would resolve the problem. The correct approach (and, incidentally,
probably the easiest and certainly the most likely) is to pass a
completely rewritten Title 17 of the US Code that is consistent with the
view that people are free to share information with one another for the
mutal benefit of mankind.
Here's some words from my man Thomas Jefferson (who was conveniently
shipped to Paris so his populist influence would not be part of the
Constitution and who had to force the Bill of Rights on them when he came
back home):
"That ideas should freely spread from one to another over the globe, for
the moral and mutual instruction of man, and improvement of his condition,
seems to have been peculiarly and benevolently designed by nature, when
she made them, like fire, expansible over all space, without lessening
their density at any point, and like the air in which we breathe, move,
and have our physical being, incapable of confinement or exclusive
appropriation. Inventions then cannot, in nature, be a subject of
property."
"The mass of mankind has not been born with saddles on their backs nor a
favored few booted and spurred, ready to ride them."
"We should oppose a single and splendid government founded on banking
institutions and monied in corporations."
J.
--
-----------------
Jeme A Brelin
jeme at brelin.net
-----------------
[cc] counter-copyright
http://www.openlaw.org
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