[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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