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

[Adam Bolte]

On 12/02/12 14:42, Ben Sturmfels wrote:
> 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.
>>
>> ...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.

Free software is in everybody's interest, whereas normally copyright
only works in the interest of an individual or company. I haven't heard
RMS make such a statement before, however I disagree the two are comparable.


>> 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.

There's no disagreement from me that it's a problem for the entire
industry. However, there is plenty of speculation that it's going to be
very difficult to completely abolish software patents, and that we
should aim our sights lower. I don't really agree with this view,
however I'm no expert and maybe we really do need to consider looking at
this from another angle.

At the moment, all I've heard is that if we go down this path, we would
need to try to convince politicians that a number of changes (2 at
minimum) need to be made to software patent law. Maybe it's easier to
just get one change through instead?

Ben, you said you are applying the 'Divide and Conquer' approach to
patents (since patents are probably also a real problem in other
industries). If software patents as a whole is too large a chunk,
perhaps dividing out free software as the first step will be easier? I
don't know the statistics, however I'd expect the majority of people
interested in ending software patents also have a soft spot for free
software.

With free software patents out of the picture, most probably one could
expect that attacking the remaining software patent issues would then be
easier. I could imagine software companies eventually turning around to
complain that free software is too competitive and they need to be
exempt from patents, and we would have proven that changing the patent
system is possible, so maybe we would get even more support. Then
there's the additional reasons I mentioned before.

So Matt, such a first step wouldn't necessarily be in the best interests
of the proprietary software industry - true. I'm definitely not saying
we forget about abolishing software patents entirely, but just
suggesting we fight smaller easier battles at a time in a way that might
make the entire war more conclude more quickly.

I personally would rather have patents become less and less of a problem
over 10 years, over having them wreak Hell on everyone for 10 years
until they are abolished all in one hit. But like I said, I'm no expert
on what the best approach is. Ben said he wasn't either, and I'm not
sure if it's something that's been seriously considered yet.


> 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 was my thinking too. If people want to take BSD code and make it
non-free, they would just take on the patent risk no differently than
they already do - at least for as long as software patents exist (which
I agree, won't be forever if we keep up the fight).

Regards,
Adam