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Re: [Australia-public-discuss] Excluding free software from patentabilit

From: Ben Sturmfels
Subject: Re: [Australia-public-discuss] Excluding free software from patentability (was: Video/audio from patents talk and committee hearing)
Date: Sun, 12 Feb 2012 14:42:42 +1100
User-agent: Mozilla/5.0 (X11; U; Linux i686; en-US; rv: Gecko/20120131 Thunderbird/3.1.18

On 12/02/12 12:05, Matt Giuca wrote:
I thought that there was a really great idea from a commenter at the end
of your talk whereby free software would be considered by law 'in the
public interest' and becomes except from applying to patent lawsuits at all.

Not only would this meet our goals of being able to write and use free
software without consequence, but it would also encourage businesses to
publish free software to protect their efforts. I like it.

I share Ciarán's objections to this idea, but I thought I'd add some
points of my own.

Not wanting to open the "GPL vs BSD" debate -- I find the GPL more to
my liking, but I still think it's important that people be able to
license things as they wish, and this idea would seem incompatible
with the ideals of the BSD license. Saying "free software is exempt
from patents" would mean that any BSD-licensed software that infringes
on others patents would not be a fully open product. You could use it
in other free software projects, but you would be unable to use it in
a proprietary product without patent issues. So effectively, it would
transform the BSD into the GPL.

Also, would this law be applied to free-as-in-speech software, or
free-as-in-beer software, or both? If I write a proprietary program
but give it away for free (freeware), am I exempt? If I write a GPL
program but sell it, am I exempt? It seems a tad unfair to say that
commercial open source software is exempt from patent lawsuits, as it
would mean that a company could gain exemption merely by providing the
source code to their software. That would further our interests, but
I'm not sure it would really be in the interest of the industry.

While I like free software, I respect the right for people and
companies to keep secrets, if they wish. I prefer to let the market
decide: if you want to lock up your software, then I won't buy it, but
that doesn't mean I should be able to stop you from doing so. I find
it troubling when people suggest special rules for free software. For
example, at a recent talk, someone asked Richard Stallman: "if you
want shorter (5 year) copyright terms, wouldn't that mean that all
GPL'd software would go into the public domain after 5 years and it
could then legally be used in proprietary software." And his answer
was that there would have to be a special exception for free software
so that the copyright term lasted longer. Sorry, Richard. I like the
GPL and what you've done, but it seems hypocritical to ask for
everybody else's copyright to expire but let us keep ours because it
suits our interests.

Patents are a plague on the entire software industry. They are bad for
free software. They are bad for proprietary software. Patent reform
therefore needs to be industry-wide. We can't make this a free vs
proprietary issue, because it's bigger than that. It's bigger than the
issue of whether source code is available and whether you are free to
modify it -- this is a fundamental issue of being allowed to write any
software you can imagine, and I want the right to be able to do that
whether I am releasing my source code or not.

Matt's last paragraph is excellent and I agree heartily that patent reform is needed for the entire software industry.

The first three paragraphs are quite flawed though. I realise I'm going well off topic, but I'd like to address Matt's points about free software:

Endowing a benefit to free software by excluding it from patentability in no way "transforms the BSD into the GPL". Sure if you use BSD-licensed code in a proprietary program you wouldn't receive the proposed patent exclusion benefit. That's no different to today's situation though. This suggestion really is just inciting GPL/BSD flaming.

Free software makes no distinction between software distributed at zero price and software sold for a fee. This means the questions posed about cost aren't relevant.

Discussions of copyright are irrelevant to discussion on patents. Besides that, endowing a copyright benefit to free software would be endowing a benefit to society as a whole. There's no hypocrisy there.


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