[PLUG-TALK] Software Patents

Keith Lofstrom keithl at kl-ic.com
Mon Feb 14 16:37:14 UTC 2005


On Sun, Feb 13, 2005 at 10:42:52PM -0800, plug-talk-request at lists.pdxlinux.org wrote:
> 
> The point is, our Constitution *clearly* defines rights to what we now 
> call "intellectual property", and it will require a Constitutional 
> amendment to change that. 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.

The Constitution reads:

Article. I.
Section. 8.
Clause 1: The Congress shall have 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;

You will not find anything in there about "Intellectual Property"
because this does not describe a property right.  The phrase 
"Intellectual Property" was not invented until the 1970's;  before
then, patent and copyright law was widely recognized as a government
*incursion* into the operation of the free market.  It was (and is)
considered justified by most.

In his web book Future Imperfect, David Friedman notes that
"Intellectual Property" is a *metaphor*, and you can get in big
trouble when you choose the wrong metaphors.  

http://patrifriedman.com/prose-others/fi/commented/Future_Imperfect.html

When "Human Chattel Property" and "States Rights" became the metaphors
for slavery, we ended up with the bloodiest war in U.S. history.  When
"Manifest Destiny" became the metaphor for territorial conquest, we
got genocide against native americans.  Metaphors can be handy;  they
help us map new ideas onto well developed thought structures.  OTOH,
they can really screw us up - the programmer sees lines of C code, 
while the system cracker sees the actual series of binary machine code
instructions.  Is it any wonder that the system cracker finds (and
exploits) capabilities in the actual machine code that the programmer
is blind to?  Metaphors are no substitute for the real thing.

"Software patents", and the even more dangerous "business methods
patents", are likely to be the tools that "business crackers" will
use to destroy the U.S. economy.  Those of you who are unemployed are
already feeling the effects, and we have just gotten started.  Rather
than being a way to expose trade secrets for study and emulation,
these new "Intellectual Properties" are being used to stifle innovation
and competition. 

Here's the thing - as the world economy kicks into high gear, and the
grandchildren of Indian peasants become multinational entrepreneurs,
the churn increases, and old businesses are overtaken by new ones. 
Business evolution favors the kudzu over the redwoods.  The feudal is
steamrollered by the free agent.  You can attempt to form little
protectionist enclaves, but they start looking a lot like North Korea. 
The richest country in the western hemisphere in 1900 was Argentina,
not the US;  when faced with the competition from the Norteamericanos,
they put up walls rather than install turbochargers.  We got the
computer, they got Eva Peron.

Patents are nothing more than walls that stop progress.  We are only
6 percent of the world;  in time,  our walls will be ignored.  Then
our walls will be stomped flat by outsiders hoping to exploit the
human and physical resources we have temporarily sequestered.  The
costs to our grandchildren, and to the environment that we try to
protect through stasis rather than linkage, will be profound.

What we do with Linux are blows against this juggernaught.  With OSDL
and the open source community strong in Portland, we can be the free
trade Shanghai in a decadent China.  We can fight software patents,
not by trying to restrict the restricters, but by sucking away the
economic energy that fuels their self-destructive campaigns.  That
does not mean rejecting the global economy, or eschewing the profits
that drive it, but instead humanizing it and forging the web of
person-to-person connections that will replace the corporate behemoths.
The dollars and rupees and zlotnys that I trade with Pradeep in
Bangalore or Vladimir in Warsaw are not available to the Haliburtons
and Exxons of the world.  If instead I fold my arms and declare "I'm
not playing your game", then I, and eventually my country, get
relegated to the sidelines.  Buenos Aires if we are lucky, Pyongyang
if we are not.

Software patents?  They are merely externally imposed rules on a game
that increasingly fewer people want to play.  If we want to stay in
the game, we have to be fun to play with.

Keith

-- 
Keith Lofstrom          keithl at keithl.com         Voice (503)-520-1993
KLIC --- Keith Lofstrom Integrated Circuits --- "Your Ideas in Silicon"
Design Contracting in Bipolar and CMOS - Analog, Digital, and Scan ICs



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