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Debian Open Source Patents Linux

Debian, SFLC Publish Patent Advice For Community Distros 63

Posted by timothy
from the in-short-just-say-no dept.
An anonymous reader writes "The Debian Project is pleased to announce the availability of the Community Distribution Patent Policy FAQ, a document meant to educate Free Software developers, and especially distribution editors, about software patent risks. The FAQ has been prepared by lawyers at Software Freedom Law Center (SFLC) at the request of and with input from the Debian Project. While the document does not constitute legal advice, it provides insights on dealing with software patents, which might be applicable to other community-driven Free Software distributions. The Debian Project maintains a critical stance towards software patents: we consider software patents a threat to Free Software and we believe they provide no advantages in promoting software innovation."
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Debian, SFLC Publish Patent Advice For Community Distros

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  • by Anonymous Coward on Sunday July 10, 2011 @01:45AM (#36709508)

    The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

    This applies just as much to software as to physical objects. Suppose I came up with a method to dramatically increase a car's gas mileage. What's the difference if the method is a change in the physical structure of the engine or an improved algorithm in the car's software? The same logic applies: if my method is not protectable by patent law, I lack economic incentive to put the necessary time and effort into developing the invention.

    I understand (and agree with) arguments that the patent time should be less for software, that the thresholds for patentability and enforcement are far too low, and that the whole system in general is being abused and needs major changes.

    But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

    • by Anonymous Coward

      For the same reason that Patents in the Air Plane field were bought up by the US gov't for WWI (REF #1) and given into a state controlled pool. Also the same reason Ben Franklin refused to patent the lightening rod.

      Because it is for the betterment of society, and for the nation as a whole. Without the airplane patents being essentially null/void the US would have had no manufacturing of airplanes b/c of "patent nuclear war" and I can't find links to it now, but Economists have said that is one of the leadin

    • by Lanteran (1883836) on Sunday July 10, 2011 @02:09AM (#36709556) Homepage Journal
      Patenting software is more akin to patenting, say, plot elements in a book than actual physical inventions. Copyright is all that should apply to software. Besides being incredibly stifling with such long lifetimes in terms of software, they are overly broad, usually incredibly obvious, and almost never provide the information to replicate what is described in the patent. I think the book analogy is a good one, so I'll go with it. What if someone patented, say, the scifi or fantasy generas, plot elements, etc.? It'd be nearly impossible to write a book, regardless of whether you had the ideas independently or not. Besides my issues with copyright term, I've got no problem with copyright alone applying to software- you can protect the code you wrote, while not being able to sue someone who independently came up with similar code.
      • by Anzhr (1132621)
        "Patenting software is more akin to patenting, say, plot elements in a book than actual physical inventions. " Excellent analogy.
      • Agreed... it wouldn't be impossible to write a book though. If you're an author, you'll be required to license the plot elements and sued into poverty if you don't comply.

        At the end of the day, if you write software, you will violate a patent. But it's not all bad. Most companies won't care to go after you because it wouldn't be cost effective. But at some point, you'll make enough money. When you do, most companies will ask you to license their ideas. If you can't afford the license and you don't halt a

      • I would like to patent anything containing IF.....THEN.....ELSE or should I be saying I would like to patent everything.
    • by Lanteran (1883836)
      Also, I don't believe math is patentable as per the algorithm in your example. You can keep the discovery a trade secret of course, but you cannot patent math.
    • by martin-boundary (547041) on Sunday July 10, 2011 @02:58AM (#36709698)

      The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

      No, the basic idea is not sound at all. It's a repugnant form of thought control. The problem is that someone on the other side of the country can pay the government to stop you personally from freely practicing the thoughts in your head. Worse, you don't know that you're infringing until you get sued, and then you're guilty even though it was entirely your own idea. Patents are antithetical to the ideals of a free society: The only guaranteed safe way of not being attacked by patent trolls is to never think up anything that might even remotely be considered novel.

      There are plenty of ways that patent systems could be reformed into something less damaging to society, but as it stands, the system is pure evil.

      • by Qzukk (229616)

        never think up anything that might even remotely be considered novel.

        Worse, you have to never think up anything that some government employee didn't think was novel.

    • You're looking at an irrelevant aspect, virtual vs physical.

      If the patent office awards someone the invention of the hammer or the double linked list, the problems are exactly the same: prior art, banal invention that somebody else would eventually have come up with. The virtuality of the object is not relevant there.

      The physical object has an advantage in providing boundaries for useful patenting when it's required to make and submit a working prototype, that's a tangential issue.

    • by Anonymous Coward

      No, the basic idea behind the patent system is not sound. What the deal is supposed to be is that in return for an exclusive right for a limited time, inventions which would otherwise be kept secret or lost, get documented in the patent. That is supposed to promote the progress of science and the useful arts. The key metric to measure the patent system is to ask whether it promotes progress. Whether or not it "protects" inventors from something or other, is irrelevant. Hundreds of years of experience has in

    • by rtfa-troll (1340807) on Sunday July 10, 2011 @03:22AM (#36709758)

      But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

      There are lots of clear rational arguments against software patents

      Freedom of speech;

      Software source code is a form of Speech; it is a method of communication from one programmer to another about mathematical concepts and their usage. Free software, in particular (though probably not most "Open Source" software) is often political speech. As such, under the UN Convention on Human Rights, the European Convention on Human Rights and the Constitution of the USA, it is the most highly protected form of free speech. Software patents attempt to interfere with that and are clearly criminal.

      mathematics / algorithms

      A program is; simply; a large integer. Running a program is, exactly running a series of mathematical operations on that large integer. Mathematics is explicitly recognised as non patentable in most patent regimes.

      A similar argument can be stated in terms of algorithms. Software patents always claim a "method and aparatus". The reason for this that a pure algorithm is recognized as not patentable, only things with

      the nature of software development

      Software is developed differently from bridges electronics and other areas of physical engineering. In other areas we much more start with a design, apply known techniques and get to a given end. New forms of bridges come out of separate explicit research where prototypes are built and actual work is done separately from the development process. This means that advances come more slowly and explicitly from research to development. In software, every new software development effort includes and should include new ideas explicitly. Once these ideas are developed it is very easy to package them up into libraries and make them available. The same ideas are re-invented repeatedly. At the same time, it is almost unheard of for a software developer to benefit from reading a software patent. Finally, a bridge builder will probably take days or weeks to consider a single idea. A programmer will probably use a hundred patentable ideas in a single day. The only reason that the programmer is able to work at all is that software patents are a new idea so 99.9% of those ideas will already have been used by someone else. In other areas, a patent search taking several days may be done for every new idea.

      • there is no need for patents because ideas are continually re-invented;
      • software ideas are cheap; the loss of one single new idea is not a big worry
      • patents do not provide the benefit they should to the software development process.
      • software can be developed by home developers who can't afford patent lawyers.
      • the cost of patents to software development is much higher than to other areas
      • handling software patents properly would need 1000 lawyers for every programmer

      I'm not nearly the first person to put these forward. If you haven't heard them before, then you might want to have a look at Groklaw [groklaw.net], the league for programming freedom [progfree.org]. There is a long list of reasons given on the end software patents web site [swpat.org].

      • by mfwitten (1906728)

        Everything in this Universe is a manifestation of Mathematics/Logic; everything is just information.

        Either patents apply to everything or they apply to nothing.

        • Everything in this Universe is a manifestation of Mathematics/Logic; everything is just information.

          If you can provide a clear proof of that, I think the Nobel committee has a few things lying around waiting for you.

          Even if it were true; it's pretty clear there is currently a legal and practical difference beween on the one hand matter & possessions and on the other information and virtual things. There is no "freedom of possession" which entitles you to have any object you want to have.

          • by mfwitten (1906728)

            there is currently a legal and practical difference beween on the one hand matter & possessions and on the other information and virtual things.

            What does 'virtual thing' even mean? People are always talking about software as though it's intangible and metaphysical. This is because most people don't understand what's going on; they can't see gears and levers and wheels that can be turned by hand, so they assume that some kind of magic is at work.

            There is no fundamental difference between the Newcomen steam engine and Linux's latest execution scheduler.

            There is no "freedom of possession" which entitles you to have any object you want to have.

            The only thing that gives you the "right of possession" is physical violence. The only reason there

    • Re: (Score:2, Interesting)

      by Anonymous Coward
      Having been a developer for a small-medium company for 25 years I can only see software patents helping multi-nationals. We have never patented anything and the company would have gone broke long ago if we tried. We simply don't have the resources, Once a multi-national company gets a big enough portfolio it becomes hard for another to sue as they are probably infringing on each other and only the lawyers will end up making much profit. The only exception to this is you patent troll company, We have never n
    • by pieterh (196118)

      The basic idea of the patent system is... extraordinarily confused. The arguments about the benefits of monopolies of ideas vs. free trade in knowledge have been going on for at least 150 years if not longer. Let's get one thing clear: software patents are exactly like all other patents in that they control the use of an idea. There is no inherent difference between the patent for a steam engine and the patent for a linked list.

      Patents on steam engines held back the industrial revolution by 20 years. Patent

      • by aurizon (122550)

        When a patent is held by some entity capable to taking it to the broad market it gives that monopoly to someone who will use it - for the time. The Wright brothers had no such ability, although they insisted that they did, and became a block to further use by others(on reasonable terms). The steal patents were held by assorted blocs of large makers who wanted to their side to win and were quite capable to making their own steam ecology.
        What is needed is some law that the maximum amount that all pate

    • by melikamp (631205)

      The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources.

      Bzzzz. On the contrary, there is little incentive to come up with anything novel under the patent regime: big corporations will always find something in your invention or manufacturing process that seems to infringe and simply bleed you to death in court. This is especially true for the most complicated inventions like software and (I imagine) drug cocktails. Without patents, inventors still have the first mover advantage and the trade secrets on their side, and no one can take that away.

    • by BlortHorc (305555)

      The basic idea behind the patent system is sound. There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

      This applies just as much to software as to physical objects. Suppose I came up with a method to dramatically increase a car's gas mileage. What's the difference if the method is a change in the physical structure of the engine or an improved algorithm in the car's software? The same logic applies: if my method is not protectable by patent law, I lack economic incentive to put the necessary time and effort into developing the invention.

      I understand (and agree with) arguments that the patent time should be less for software, that the thresholds for patentability and enforcement are far too low, and that the whole system in general is being abused and needs major changes.

      But I have yet to see a rational argument for why physical inventions but not virtual inventions should be patentable.

      Wow. This has to be the best troll I have seen in years.

      And yeah, I know, don't feed them, but +5 insightful? Sheeeeet

      Indeed, the basic idea behind the patent system is sound. However, a software patent does not need to provide an actual working solution, all it needs to do is for someone to say: I reckon I could make something like this work. This, as opposed to a physical patent, which needs to describe an actual thing, and how it actually works.

      Benefit to society from the "I reckon" patents: virtually no

    • by Rozzin (9910)

      There's no economic incentive for individuals and small to medium-sized businesses to invent things when a big company can just take the idea and easily outcompete due to greater resources. And without the patent system, there's no incentive to release inventions into the public domain rather than try to protect them as trade secrets.

      cf.: http://mimiandeunice.com/2011/06/08/status-quo/ [mimiandeunice.com]

  • It's generally a good document answering basic questions on software patents, but the answer to the first question makes me cringe: "What is a patent? A patent is a state-granted monopoly ..."

    A patent is not a monopoly. A monopoly, implies that a person have market power: that they can set the price of a product above what it would be in the free market. However, a patent does not grant such power. The vast majority of patents are for useless inventions and would not be able to demand any market power. B
    • A patent is not a monopoly. A monopoly, implies that a person have market power: that they can set the price of a product above what it would be in the free market. However, a patent does not grant such power.

      You're wrong. A person with a patent does have market power. They are the only ones who can make/sell/etc products which depend on the patented claims, in the market comprised of all products which depend on those claims. Thus the market for that claim is certainly not free, and the price demand

    • A patent is not a monopoly.

      And if you're patent is on a standard, such as video encoding where you must use the required technology in order to be compatible?

    • by rtfa-troll (1340807) on Sunday July 10, 2011 @03:28AM (#36709774)
      Monopoly [merriam-webster.com]
      1
      exclusive ownership through legal privilege, command of supply, or concerted action
      2
      exclusive possession or control
      3
      a commodity controlled by one party

      Definition 2 definitely doesn't need market power. Please don't confuse a "monopoly" (english language word) with being found guilty of abusing an "illegal monopoly" (legal term) which requires a much more stringent standard.

      • But a patent does NOT give the right to "exclusive possession or control". Simply because you have a patent on something does not mean that you can actually use it. If Edison patents the light-bulb and then I come along and patent the florescent light-bulb, I can NOT make a florescent light-bulb without Edison's permission. A patent simply gives the right to exclude others, it does not give you the right to practice an invention yourself, exclusively or otherwise.
    • by Qzukk (229616)

      Any infringing software can be modified to work around just about any software patent. For example, if you have a patent on quicksort, I'll use merge-sort.

      I have the patent on quicksort, and your application sorts, so it looks to me like it's infringing. I guess I'm going to have to sue you and then we'll see if the jury thinks you're using quick sort or just trying to blow them over with your fancy merge sort talking.

      The difference between so-called "business method" or "software" patents and real patents

  • by nzac (1822298) on Sunday July 10, 2011 @03:31AM (#36709782)

    Only the US appears to have really bad software patients and if you live outside the US EU and Japan chances are no one bothered to patent it.

    I also find it funny that source code is considered a description of the patient. Does that mean for the likes of x264 you would have to sue each individual complier for the infringement (yes I know they distribute the complied library). Also does that mean that all Gentoo users are terrorists/communists?

  • I found their discussion around the difference between source and binary distribution interesting. I'd be curious as to whether you could even come up with a truly robust definition for those terms.

    Is the distinction being human-readable? Well, if I have an opcode table binary executables are at least as readable to me as Chinese is.

    Is the distinction being directly executable? Well, what about Java and any language that compiles to bytecode? What about a theoretical microprocessor that implements in hardware a C interpreter?

    Machine code and C are just two languages - they are a bunch of symbols arranged in some syntax that coveys a series of steps to be executed.

    I could see how you could distinguish between writing code and executing code, just as you can distinguish between talking about robbing somebody and actually doing it.

    • by nzac (1822298)

      I would think that free speech only applies to what humans say not the output of a complier and the output changes depending on settings. While you can imply or auto complete some things this is the actual work of a human. If someone writes a program in machine code so that it can be read then it would be source code as well.

      Is the distinction being human-readable? Well, if I have an opcode table binary executables are at least as readable to me as Chinese is.

      Stop trolling, if you did not speak English this would also be unreadable to you.

      • by Rich0 (548339)

        Stop trolling, if you did not speak English this would also be unreadable to you.

        Woosh!

        Of course, but I do speak English, so I picked Chinese as a random example of a language I don't understand. And you're just proving my point - binary code is no less human readable than any language that you don't happen to know.

        • by nzac (1822298)

          Speech is communication that someone intends to use to convey information to another person (probably not an accurate definition) but if it is actually understandable by anyone or actually has any information is irrelevant. Legally speaking and by my definition you probably don't speak to your computer its just IO, its can become seeking if your communication goes to someone.

          What is the relevance to your argument that someone cant understand something because they have no knowledge of the language? Its quit

          • by Rich0 (548339)

            My whole point is that there is fundamentally no real fundamental difference between source code and binary code in the first place, so it seems a bit silly to treat them differently from a legal perspective. The difference at best comes down to intended use. If I email you a binary and tell you not to run it, does that make it non-infringing? If I email you source code and tell you to compile/run it, does that make it infringing? Where do you draw the line? I suspect it would come down to communicatio

            • by nzac (1822298)

              Im still not sure your not trolling address my actual points.

              You have to look at it from the other end speech its not defined by if its reverse engineer-able or not, you dont read binary code left to right or another direction you jump all over the place and re read sections. Speech is determined by being it spoken/written not by the recepient understanding. Computers are in no way legal entity to be compared to a human and though a hex editor gives a lot of context programs are still just a big number (thi

              • by Rich0 (548339)

                So, how is source code "free speech" but binary isn't? You can read either out loud. Either is understandable to somebody trained to understand it - as with any language. Either can be processed directly by a microchip as well...

    • Machine code and C are just two languages - they are a bunch of symbols arranged in some syntax that coveys a series of steps to be executed.

      This is the reason software shouldn't be allowed to be patented in the first place. It doesn't matter whether you write a linear algebra system or an iPhone fart program, in the end it's all math.

  • If it's not legal advice, then I would have to be some kind of idiot asshole to follow it, as patents are a legal fabrication.

  • by archebyte (2361324) on Sunday July 10, 2011 @07:04AM (#36710436)
    Richard Stallman's lecture on patents is worth listening to get an understanding of the real issue and some history on how some software patent cases have played out. http://audio-video.gnu.org/audio/#2011 [gnu.org] Scroll to 'The danger of software patents.'
  • No, they are a threat to our very way of life and should be stopped.

    Copyright, sure, patent, no.

  • I don't think the Debian Project are the has the best ideas when it comes to software patents, seeing as their policy is 'assume the position for Uncle Sam'. We should instead follow the example of Canonical: 'incorporate somewhere under control of a more friendly government and waggle tongue'.

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