[Office-commits] r9808 - trunk/campaigns/patents

[sysadmin]

Author: johns
Date: Tue Sep 29 16:26:09 2009
New Revision: 9808

Log:
Gobbified version by Brett, John and Don.

Modified:
   trunk/campaigns/patents/amicus-intro.mdwn

Modified: trunk/campaigns/patents/amicus-intro.mdwn
==============================================================================
--- trunk/campaigns/patents/amicus-intro.mdwn   Tue Sep 29 16:15:14 2009        
(r9807)
+++ trunk/campaigns/patents/amicus-intro.mdwn   Tue Sep 29 16:26:09 2009        
(r9808)
@@ -1,14 +1,15 @@
 INTEREST OF AMICUS CURIAE
 
 The Free Software Foundation pioneered a movement of information
-exchange that focused on software development but branched out to
-broader fields to great public benefit. [footnote citation to books,
-articles, cases and FSF and a few other websites] ...Apart from work
-of its staff and volunteers in its core activities, its proposed forms
-of public licensing are known world-wide and have been adopted (as
-proposed or with variations) and implemented by millions of people
-creating, adopting and modifying software. [fn: follow up citation to
-some instances and general statistics] The aggregate effect of their
+exchange that began focused on software development but branched out to
+broader fields to great public benefit. In addition to being a direct 
innovator in the field of software, it provides via its legal and technical 
infrastructure an umbrella for further software development worldwide, and as 
an important part of the worldwide free software movement, has been both an 
inspiration for and a close observer to related social movements and 
organizations promoting legal sharing of innovative knowledge and cultural 
works in a variety of fields.
+
+The Foundation's mission is focused on free software, which gives all users 
the freedoms to study, copy, modify, and redistribute their own changed 
versions (see The Free Software Definition, 
http://www.gnu.org/philosophy/free-sw.html). It supports free software 
development directly in three main ways. First, for its GNU Project, launched 
in 1983 to create a fully free and functional operating system, it has provided 
necessary services like project hosting, development servers, network 
bandwidth, legal support, and funding for programmers. Second, it provides a 
set of copyright licenses which can be used by any author as the terms under 
which to distribute their own software and documentation. Rather than restrict 
innovation and distribution, these public copyright licenses encourage sharing 
and modification, providing a way for authors to commit their work to a commons 
and users to share and improve those works without fear. Its primary license is 
the GNU General Public License (GPL). In addition to its own licenses, the FSF 
keeps an up-to-date list of licenses published by other companies and 
organizations which meet the Free Software Definition (see Various Licenses and 
Comments about Them, GNU.org, http://www.gnu.org/philosophy/license-list.html). 
Third, it engages in public education and advocacy work to raise awareness 
about free software to create more opportunities for its use and development, 
and to ensure that the freedoms outlined in the Free Software Definition are 
respected. 
+
+Over the last 25 years, the GNU Project has successfully developed the 
utilities and applications that together with the kernel Linux (also 
distributed under the GPL) written by Linus Torvalds and contributors around 
the globe, form a complete free software operating system used by a growing 
number of individuals, governments, and companies in place of Microsoft's 
Windows or Apple's OS X, called GNU/Linux. (Vinod Valloppillil, Open Source 
Software, a (New?) Development Strategy, Aug. 11, 1998, available at 
http://iowa.gotthefacts.org/011607/6000/PX06501.pdf ("GCC is the most widely 
used compiler in academia & the OSS world. In addition to the compiler a fairly 
standardized set of intermediate libraries are available as a superset to the 
ANSI C libraries.") The Project is still going strong, continuing to refine its 
software and develop new applications. The extent of FSF president Richard 
Stallman's contribution to free software and its social movement has been 
recognized by many institutions, including a MacArthur Foundation Fellowship 
awarded in 1990.(MacArthur Fellows - August 1990, www.macfound.org, 
http://www.macfound.org/site/c.lkLXJ8MQKrH/b.1142703/k.787E/Fellows_List__August_1990.htm)
+
+Though itself a nonprofit, the Foundation's publicly available licenses are 
known worldwide and have been adopted (as proposed or with variations) and 
implemented by millions of people outside the GNU Project who are also
+creating, adopting and modifying software, for both commercial and 
noncommercial purposes. FSF software licenses are used by 65% of the more than 
200,000 coding projects listed by Black Duck: 
http://www.blackducksoftware.com/oss/licenses/#adoption. The aggregate effect 
of their
 work, done with reliance on a model of freedom, has promoted science
 and the useful arts, the objects of copyright and patent systems set
 forth in U.S. Constitution, Art 1, sec. 8 (8) ; has limited monopoly
@@ -16,18 +17,53 @@
 federal and state statutes and common law; and has promoted freedom of
 expression, an object of federal and state constitutions.
 
-Software writings distributed through the General Public License
-formats of the Foundation and other free and open source formats,
+But the impact of the free software movement extends far beyond people who 
directly identify themselves as its members; it has influenced many other 
social movements, both software and nonsoftware. In 1998, a group of people 
calling themselves "open source" split off from the movement, in order to focus 
less on the ethical and the social ramifications of software and more on values 
that would appeal directly to businesses, like efficiency, security and 
cost-savings. Because the two groups often collaborate on the actual writing of 
software code, it is common to talk about them together as Free, Libre and Open 
Source Software or FLOSS.
+
+Bruce Perens, co-founder of the Open Source Initiative, explains the 
connection between Richard Stallman and the FSF's notion of free software, and 
the launch of the open source movement.
+
+"My intent has always been for Open Source to simply be another way of talking 
about Free Software, tailored to the ears of business people, and that it would 
eventually lead them to a greater appreciation of Richard Stallman's 
arguments."  <http://perens.com/works/articles/State8Feb2008/>
+
+FLOSS writings distributed under the terms of the General Public License,
 inspired in substantial part by the Foundation's work, have become
 staples of data handling and other information systems,
 telecommunications, video and sound files creation and control,
 scientific research, bioinformatics, health care, enterprise
 management and, equally important, have been useful in the study of
 artificial intelligence as a science apart from industrial
-applications. It has also served to mitigate the effects of industrial
-monopoly power and other restraints of trade [footnote citation to the
-story of Microsoft's assessment of the power of open source creativity
-in the so-called 'pumpkin paper' memo revealed in its antitrust case]
+applications. Although it does not achieve the public visibility or 
recognition of proprietary software systems like those developed by Microsoft 
and Apple, a closer look shows that many, if not most, uses of computers today 
in both the public and private sectors involve FLOSS.
+
+Free software, and specifically software distributed under the GPL, is used 
heavily by the US government. A 2003 report commissioned by the Department of 
Defense entitled, "Use of Free and Open Source Software (FOSS) in the U.S. 
Department of Defense," credits Richard Stallman and the Free Software 
Foundation directly. It shows that roughly 50% of all of the FOSS used at the 
DoD is licensed under the GPL. The report evaluates what a possible world 
within the DoD without this software would look like, and says:
+
+"The main conclusion of the analysis was that FOSS software plays a more 
critical role in the DoD than has generally been recognized. FOSS applications 
are most important in four broad areas: Infrastructure Support, Software 
Development, Security, and Research. One unexpected result was the degree to 
which Security depends on FOSS. Banning FOSS would remove certain types of 
infrastructure components (e.g., OpenBSD ) that currently help support network 
security. It would also limit DoD access to--and overall expertise in--the use 
of powerful FOSS analysis and detection applications that hostile groups could 
use to help stage cyberattacks. Finally, it would remove the demonstrated 
ability of FOSS applications to be updated rapidly in response to new types of 
cyberattack. Taken together, these factors imply that banning FOSS would have 
immediate, broad, and strongly negative impacts on the ability of many 
sensitive and security-focused DoD groups to defend against cyberattacks." 
(http://www.terrybollinger.com/index.html#dodfoss)
+
+In addition, NASA has also recognized the importance of free software by 
creating its own repository of freely licensed works. (See Matt Asay, NASA 
takes open source into space, CNET News, July 22, 2009, 
http://news.cnet.com/8301-13505_3-10292950-16.html; Nasa Ames Open Source 
Software, Nasa.gov, http://opensource.arc.nasa.gov/)
+  
+While the military and other divisions of government may not have to worry 
directly about their own use of patents, this report shows that their operation 
depends on the continued development worldwide of the kind of free software 
they use today; specifically the kind of free software facilitated by the FSF.
+ 
+GPL software is also critical to the private sector. A world without the FSF 
and FLOSS in the private sector would look vastly different.  Free software has 
even been incorporated under the hood into a number of largely proprietary 
technology products, including smartphones like the Apple iPhone and the Palm 
Pre, digital video recorders like the TiVo, televisions from Sony and Toshiba, 
e-book readers like the Amazon Kindle, and many more.  Free software is also 
crucial to the business of many modern technology companies, including IBM, Sun 
Microsystems, Red Hat, and Novell.  All of these companies are happy to rely on 
free software because they can readily adapt the programs as needed to meet 
customer needs and stay competitive in this fast-paced industry.
+
+Specific free software programs aimed at individual computer users' desktops 
have also seen wide success recently. The free software Mozilla Firefox browser 
alone, available as free software under a number of licenses including the GPL,
+ has reached a market share of over 20% in a field that was once so dominated 
by Microsoft's Internet Explorer that the company was prosecuted over antitrust 
concerns, (Emil Protalinski, Safari, Chrome, Firefox steal share from IE, Opera 
in January, Ars Technica, February 6, 2009, 
http://arstechnica.com/microsoft/news/2009/02/january-2009.ars; Firefox: 270 
million, 
http://weblogs.mozillazine.org/asa/archives/2009/05/firefox_at_270.html). 
+
+In addition to the millions of users using free software browsers, much of the 
Internet they are connecting to is built on free software.( Erez Reuveni, 
Authorship in the Age of the Conducer, 54 J. COPYRIGHT SOC’Y U.S.A. 285, 293 
(2007) (“Today, roughly 70% of Web server software runs on Apache Web
+server, free software produced under the open-source model.”).
+
+The Foundation has been in a unique position to contribute to and witness the 
innovation that has happened as a result of free software over the course of 
the last 25 years, but also to witness the innovation that did not and does not 
happen as a result of the the specter of patent infringement hanging over the 
heads of people with insufficient resources to defend against such threats.  It 
has seen the effort undertaken by free software developers to defend themselves 
against software patents -- both as a preemptive measure to avoid legal 
disputes, and in response to specific threats from patentholders.
+
+Because of its position as the steward of such widely used licenses, the FSF 
is in a uniquely qualified position to report as a close observer of these 
worldwide sharing and innovating communities. As part of publishing a new 
version of the GPL, the FSF ran an international community comment process, 
soliciting feedback from companies and individuals about how the license needed 
to be improved. This process, which ran for over a year and accumulated over 
2,500 comments (http://www.fsf.org/news/gplv3_launched), showed that many free 
software developers were deterred by the threat of patents and sought 
protection.
+
+For much of its history, the FSF has grappled with the threatening possibility 
of patent suits against users of free software. Users of free software have 
been trapped by unforeseen patent claims and forced into costly settlements and 
cross-licensing agreements (See, e.g., Ina Fried, Microsoft, TomTom settle 
patent dispute, CNET news, http://news.cnet.com/8301-13860_3-10206988-56.html). 
While the respective parties involved in these suits may have settled, left 
unsettled are the larger questions for all users and developers of free 
software involving the threat of a patent suit. 
+
+In some cases, the free software community has simply done without certain 
software or functionality because of threats from patents.  Fedora, a community 
distribution of GNU/Linux sponsored by Red Hat, cannot include software to play 
MP3s or unencrypted DVDs because of patent concerns 
(http://fedoraproject.org/wiki/ForbiddenItems).  And free software support for 
the various video codecs used by multimedia on the web today remains 
hit-or-miss for similar reasons.
+
+[Other examples:
+Freetype has weirdnesses implementing optimizations to certain rendering 
algorithms because of Apple patents: <http://www.freetype.org/patents.html>
+It's not possible to do certain kinds of pre-runtime memory bounds checking 
because of a Pure patent: 
<http://www.gnu.org/patent-examp/patent-examples.html> (see the entries for GCC 
and ElectricFence -- need a better cite for this)
+Of course, there's all the old stuff surrounding compress, GIF, and RSA's 
patents
+]
+
+Free software also serves to mitigate the effects of industrial
+monopoly power and other restraints of trade by competing succesfully against 
propreitary developers in several markets (See Vinod Valloppillil, Open Source 
Software, a (New?) Development Strategy, Aug. 11, 1998, available at 
http://iowa.gotthefacts.org/011607/6000/PX06501.pdf);Peter Galli, Microsoft 
Warns SEC of Open-Source Threat, EWEEK.COM, Feb. 3, 2003, 
http://www.eweek.com/c/a/Application-Development/Microsoft-Warns-SEC-of-OpenSource-Threat/
 ("Microsoft said that the popularization of the open-source movement continues 
to pose a significant challenge to its business model."). 
 
 The Foundation has been at the center of an emerging and now
 overwhelming new economic and cultural model of sharing creativity and
@@ -36,9 +72,11 @@
 the interaction of this activity with copyright and patent systems. As
 set out below the patent system has not met the constitutional purpose
 of advancing useful arts in the case of software creation but rather
-has been an obstacle to advancement. Copyright, coupled through the
-General Public License and similar licensing models with voluntary
-open source licensing and sharing, has been beneficial.
+has been an obstacle to advancement. The Foundation can attest to the fact 
that the size and shape of this obstacle cannot be understood merely by 
examining actual instances of patent litigation; the mere threat of such 
litigation against parties without the ability to cross-license or afford 
sufficient representation has a documented substantial chilling effect on 
innovative free software development, and by extension, on other movements 
inspired by free software.
+
+The Free Software Foundation has also published the GNU Free Documentation 
License (http://www.gnu.org/licenses/fdl.html).  It was originally created to 
provide a basis for documentation for the GNU Project to be shared and adapted 
the same way that the project's software is.  However, it can readily be 
applied to any written reference work, and other projects have used this 
license as the basis for sharing information and collaborating.  Noteworthy 
among these is Wikipedia, an online encyclopedia which generally can be edited 
by anyone who visits its web site.  Wikipedia used the GNU Free Documentation 
License as the license for all of its articles until June 2009 
(http://lists.wikimedia.org/pipermail/foundation-l/2009-June/052616.html); it 
covered more than 340,000 texts 
(http://en.wikipedia.org/wiki/User:R._fiend/How_many_articles_does_Wikipedia_really_have%3F).
  Creators of Wikipedia have said that they were inspired by the Free Software 
Foundation's ideas.  
(http://icommons.org/articles/commoner-profile-10-questions-for-jimmy-wales - 
http://mixergy.com/wikipedias-founder-jimmy-wales/)
+
+Those same ideas have also given birth to other movements to create works 
which can be shared and changed, even when they did not use the licenses 
published by the Free Software Foundation.  Creative Commons 
(http://www.creativecommons.org/) publishes its own licenses that allow people 
to distribute and modify the works they cover, and are meant to be applied to a 
wide variety of works.  Current estimates suggest that these licenses have been 
used by 250 million works at minimum worldwide 
(http://wiki.creativecommons.org/Metrics).  Most of these licenses grant 
permissions and have associated conditions similar to those in the FSF's 
licenses.  Executives at Creative Commons have frequently cited the Free 
Software Foundation as providing a foundation for their own efforts 
(http://creativecommons.org/weblog/entry/13568 - intro to Free Culture by 
Lawrence Lessig), and they even go so far as to recommend that software 
developers use the Foundation's licenses, instead of Creative Commons', for 
software.
 
 While supporting the result sought by Respondent, affordance of the
 judgment of the Federal Circuit Court of Appeals of unpatentability of