, 2002
Stallman is against software patents, of course. However, his case here
is
better than many open-source-related arguments; in fact, it is squarely
aligned with the interests of software-development businesses.
3.Paul Graham, a
computer scientist and one of the partners of the venture-capital firm Y
Combinator, wrote a 2006 essay Are Software
Patents Evil?
essential problem:
This is a significant issue in the "free speech" of employees. Note
how giving providers an easy way to get libel cases dismissed via
summary judgement makes this strategy for corporations much more
difficult.
Supposedly Apple employees are fired if they write about Apple online anywhere.
In 2004, some bloggers announced new Apple rumors. In this case,
apparently the rumors were accurate, and involved inside information
from Apple employees. Apple sued, in the case Apple v Does,
for the identities of the insiders. Apple argued in court that bloggers
were not covered by the California shield law, and that even if they
were they must still divulge the identities of their contacts. The
trial court ruled in Apple's favor in 2005; the California Court of
Appeals reversed in 2006. From the 2006 decision:
See http://www.chillingeffects.org/johndoe/faq.cgi
Note that the issue here is the use of the legal system to find identities of anonymous posters. Baase has an extensive section on anonymity.
What about employee bloggers?
Well, is it?
Cases where it's been debated:
For a while, the NSA (National Security Agency) tried very hard to block even publication of scientific papers. They would issue "secrecy orders".
But eventually the government's weapon of choice was ITAR: International Trade in Armaments Regulations
Suppose you make F-16 fighters. You need a munitions export permit to sell these oversees. What about if you make open-source encryption software? You need the same kind of permit! Even if you GIVE IT AWAY!!
BOOKS were exempt. The rule applied only to machine-readable
forms.
For a while, there was a machine-readable T-shirt with the RSA
encryption algorithm on it.
Discussion: does it make any sense to ban the online source code, if a book in which the same code is printed can be freely distributed?
Phil Zimmermann released PGP ("Pretty Good Privacy")
as an open-source project in 1991. The government made him promise
not to do it again. Zimmermann's associates outside the US released
the next version. Zimmermann was under indictment for three years,
but charges were eventually dropped.
PGP later became a commercial software company, but not before
aiding in the creation of the OpenPGP standard (and allowing that use
of the PGP name). The open-source version is now GPG (Gnu Privacy
Guard).
In 1994 Bruce Schneier wrote a textbook Applied Cryptography.
All the algorithms were printed, and also included verbatim on a 3.5"
floppy disk in the
back of the book.
Phil Karn (of Karn's Algorithm for estimating packet RTT times) applied
for an export license for the package, also in 1994. It was granted for
the book (actually, the book needed no license), but
denied for the floppy.
Discussion: does this make sense?
Some of Karn's notes are at http://www.ka9q.net/export.
Daniel Bernstein created a cipher called "snuffle". In 1995 he sued to be allowed to post it to a course website. In 1997 the district court ruled in his favor. In 1999 a 3-judge panel of the 9th circuit ruled in his favor, although more narrowly. Opinion of Judge Betty Fletcher:
http://epic.org/crypto/export_controls/bernstein_decision_9_cir.html
Prior-restraint was one issue
Bernstein's right to speak is the issue, not foreigners' right to hear
But does source code qualify? see p 4232: C for loop; 4233: LISP
Snuffle was also intended, in part, as political expression.
Bernstein discovered that the ITAR regulations controlled
encryption exports, but not one-way hash functions such as MD5 and SHA-1. Because
he believed that an encryption system could easily be fashioned
from any of a number of publicly-available one-way hash functions,
he viewed the distinction made by the ITAR regulations as absurd.
To illustrate his point, Bernstein developed Snuffle, which
is an encryption system built around a one-way hash function.
(Arguably, that would now make Snuffle political
speech, generally subject to the fewest restrictions!)
Here is Judge Fletcher's main point:
Thus, cryptographers use source code to express their scientific ideas in much the same way that mathematicians use equations or economists use graphs. Of course, both mathematical equations and graphs are used in other fields for many purposes, not all of which are expressive. But mathematicians and economists have adopted these modes of expression in order to facilitate the precise and rigorous expression of complex scientific ideas.13 Similarly, the undisputed record here makes it clear that cryptographers utilize source code in the same fashion.
Government argument: ok, source code might be expressive, but you can also run it and then it does something: it has "direct functionality"
Fletcher: source code is meant,
in part, for reading.
More importantly, the idea that it can be banned due to its "direct
functionality" is a problem:
what if a computer could be ordered to do something with spoken
commands?
Would that make speech subject to restraint? In some sense absolutely yes; if speech became
action then it would be, well, actionable
(that is, something that could be legally prohibited).
In 1999, the full 9th circuit agreed to hear the case; it was widely expected to make it to the supreme court.
But it did not. The government dropped the case.
Junger was prof at Case Western Reserve University. He wanted to teach a crypto course, with foreign students.
6th circuit:
The district court concluded that the functional characteristics of source code overshadow its simultaneously expressive nature. The fact that a medium of expression has a functional capacity should not preclude constitutional protection.
Because computer source code is an expressive means for the exchange of information and ideas about computer programming, we hold that it is protected by the First Amendment.
BUT: there's still a recognition of the need for balancing:
We recognize that national security interests can outweigh the
interests of protected speech and require the regulation of speech.
In the present case, the record does not resolve whether ...
national security interests should overrule the interests in allowing
the free exchange of encryption source code.
There are several; the best known is Universal
Studios
v Reimerdes, Corley, and Kazan.
Eric Corley, aka Emmanuel Goldstein, is the publisher of 2600 magazine.
Corley:
DeCSS was developed in ~1999, supposedly by Jon Lech Johansen. He wrote
it with others; it was released in 1999 when Johansen was ~16. He was
tried in Norway in 2002, and was acquitted.
Judge Kaplan memorandum, Feb 2000, in Universal v Reimerdes:
As a preliminary matter, it is far from clear that DeCSS is speech protected by the First Amendment. In material respects, it is merely a set of instructions that controls computers.
He then goes on to consider the "balancing" approach between free speech and regulation, considering the rationale for the regulation and the relative weights of each side.
The computer code at issue in this case does little to serve
these goals [of expressiveness]. Although this Court has assumed
that DeCSS has at least some
expressive content, the expressive
aspect appears to be minimal when compared to its functional component.
Computer code primarily is a set of instructions which, when read
by the computer, cause it to function in a particular way, in this
case, to render intelligible a data file on a DVD. It arguably
"is best treated as a virtual machine . . . ."
[the decision cites Lemley & Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, Duke Law Journal 1998. However, the sentence in Lemley and Volokh's paper explicitly refers to executable object code, not source! "The Bernstein court's conclusion, even if upheld, probably doesn't extend past source code to object code, however. We think most executable software is best treated as a virtual machine rather than as protected expression." Judge Kaplan apparently did not grasp the distinction.]
Note that this virtual-machine argument renders irrelevant the Bernstein
precedent! Actually, the virtual-machine argument pretty much presupposes that you have come down
solidly on the side of code-as-function instead of code-as-expression.
Also note the weighing of expression versus functionality, with the
former found wanting.
Do you think that Judge Kaplan was stricter here than in the crypto
cases because crypto was seen as more "legitimate", and deCSS was
clearly intended to bypass anticircumvention measures?
The district court issued a preliminary injunction banning 2600.com from hosting DeCSS; the site then simply included links to other sites carrying it. The final injunction also banned linking to such sites, and included language that equated linking with trafficking.
The Appellate decision was similar to Judge Kaplan's District Court opinion, though with somewhat more on the
constitutional issues, and an additional twist on linking. Also, note
that one of Corley's defenses was that he was a journalist, and
However, in full context, that idea was harder to support.
Both the DC and Appellate courts held that the DMCA targets only the
"functional component" of computer speech.
One argument was that the CSS encryption makes Fair Use impossible,
and that therefore the relevant section of the DMCA should be struck
down. The appellate court, however, ruled instead that"Subsection
1201(c)(1) ensures that the DMCA is not read to prohibit the "fair use"
of information just because that
information was obtained in a manner made illegal by the DMCA". Subsection 1201(c)(1) reads
(c) Other Rights, Etc., Not Affected. — (1) Nothing in this section shall affect rights, remedies, limitations, or defenses to copyright infringement, including fair use, under this title.
This is an interesting argument by the court! Literally it is correct, but the practical problems with Fair Use access go unaddressed.
Some notes on the free-speech argument:
The court also acknowledged Junger v Daley (above).
However:
That is, the DeCSS code may be said to be "expressive speech", but
it's not being banned because of what it expresses.
As for hyperlinks (in the section "Linking"),
What if one simply printed the site name, without
the link: eg cs.luc.edu? For links, one can argue that the expressive
and functional elements -- what the other site is, and how to get there
-- are inseparable.
Gallery of DeCSS: http://www.cs.cmu.edu/~dst/DeCSS/Gallery
Check out these in particular:
Does the entire gallery serve to establish an expressive purpose?
Baase §4.7
Do patents help advance progress? or hinder it?
Patents are pretty clearly a market
regulation
with the sole goal of improving innovation in technology. Inventors
don't "deserve" to profit from their ideas; we simply want to make sure
they are motivated to continue. In other words, this is purely
utilitarian.
Patents are intended to cover INVENTIONS rather than IDEAS.
If you have an idea to sell hamburgers with salsa,
or newspapers & beer together, or to create a website
where people can post their own stuff, that's an IDEA.
It can't be protected: everyone else is entitled to
copy it freely.
If you decide that a certain vertical market can use an XML-based word processor, is that an invention or is that a business idea?
My (former) three-part test on when it is appropriate to recognize software patents:
35 U.S.C. §101 (patent-eligibility law):
Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful
improvement thereof, may obtain a patent therefor, subject to the
conditions and requirements of this title.
The meaning of "process" is critical here: does it mean any procedure or method? Or does it
mean "industrial process"? Historically, it pretty clearly was intended
to mean the latter.
Pharmaceutical patents are sort of the poster child for Why Patents Are Good For Us. Here the patent system IS effective at encouraging investment:
One weirdness: patents "for the use of";
someone can, if drug X is in the public domain, patent
the use of X to treat disease Y (this must be in some legal sense a
"new" use of X).
In practice this is not
much of a problem, because generic manufacturers can still make and
market X for its old purpose, and doctors can prescribe it for its new
purpose. Such prescriptions are sometimes said to be "off-label"; they
are an important way for drugs to get to people who will probably be
helped by them, but for which no company has yet done clinical trials,
and never will.
Some specific drugs:
cancer monoclonal-antibody drugs
These protein compoundss are antibodies that are highly specific to a
certain substrate; they have very narrow targets. From http://en.wikipedia.org/wiki/History_of_cancer_chemotherapy:
Another branch in targeted therapy is the increasing use of monoclonal antibodies in cancer therapy. Although monoclonal antibodies (immune proteins which can be selected to precisely bind to almost any target) have been around for decades, they were derived from mice and did not function particularly well when administered to humans, causing allergic reactions and being rapidly removed from circulation. "Humanization" of these antibodies (genetically transforming them to be as similar to a human antibody as possible) has allowed the creation of a new family of highly effective humanized monoclonal antibodies. Rituximab, a drug used to treat lymphomas, is a prime example. -- Wikipedia
The
point is
that some cancers can be specifically targeted by certain antibodies,
because they have specific antibody receptors not present in
non-cancerous cells. The receptors involved tend to be very
idiosyncratic.
None of
these drugs would exist in the US marketplace if it were not for
pharmaceutical patents.
On the other hand, the US Food and Drug Administration, which
regulates new drugs, is arguably a massive government intrusion into
the free market. Why shouldn't patent law intrude as well?
imatinib/gleevec: leukemias,
stomach cancers. It is used to treat cancers where the cells involved
have a specific receptor. Time magazine called it the "magic bullet
against cancer" in 2001, when it was approved, though that was an
overbroad assessment. It was also the subject of a patent lawsuit in
India in 2007; the case was referred by the Madras High Court to the
WTO.
rituximab/rituxan: binds to the WBC surface protein CD20. Used to treat leukemias/lymphomas, also some autoimmune diseases such as lupus
cetuximab/erbitux: metastatic colorectal cancer, head&neck cancers. Binds to EGFR receptor; it is an EGFR-inhibitor.
trastuzumab/herceptin:
breast cancer. Monoclonal antibody that interferes with HER2/neu
receptor. In some breast cancers, the HER2 receptor is, as wikipedia
put it, "stuck in the 'on' position".
Antibiotics
nobody makes these, actually. The FDA requires not just proof of
effectiveness, but proof that the infection that was cured was in fact
resistant to existing antibiotics. This makes clinical trials very expensive.
Protein pump inhibitors
(PPIs): used for various stomach-acid problems, including ulcers
omeprazole/prilosec
lansoprazole/prevacid
esomeprazol/nexium
HIV: protease inhibitors moved HIV from a short-term acute illness
to a long-term chronic illness. This made drug development profitable
again. When AZT
(one of the first effective anti-HIV drugs) was first applied in the
early 1990's to HIV patients, though, it was an off-label use.
red/white-blood cell drugs:
filGRAStim/neupogen
makes more neutrophils/other WBCs. Used for cancer/chemo/BMT patients
erythropoietin
makes more RBCs: kidney disease, cancer, cancer treatment
diabetes
exENatide/byetta: this often means the patient can
avoid taking insulin. It is offcially for type-2 (non-insulin-dependent) diabetes. From byetta.com: Byetta
may also be used for other purposes not listed in this medication guide.
In 1984, Congress passed the Drug
Price Competition and Patent Term Restoration Act, also known as
the Hatch-Waxman Act. This allowed generic drug makers to use a patented
drug in their own
FDA application, so that approval would be in place as soon as the
original patent expired (normally after 20 years). However, it also
gave pharmaceutical developers a chance at a patent extension for up to five extra years,
subject to the following:
Basically, if a country is too poor to afford to treat all its
citizens with a new drug, many may die. This has definitely been the
case with some HIV drugs. As a result, the Third World has long argued
that it should be exempt from pharmaceutical patents.
In the mid-1990's, the WTO basically agreed, and allowed (I'm not
sure of the exact terms) third-world countries to manufacture generic
equivalents of first-world drugs for use within their own borders only.
The manufacturing must be for the government's own use (eg in
distributing to its people; the manufacturing can't be a for-profit
initiative of a private company in that country). Also, a good-faith
attempt must have been made first to negotiate for a reduced-rate
license to manufacture the drug, and such profits as are made must be
given to the patent holder. In practice, large US pharmaceutical
companies often enter into vastly-reduced-price licensing arrangements
with third-world companies.
In 2005, the WTO relaxed this rule to allow poorer nations to import generics that would otherwise be covered by a patent. This is sometimes described as a "compulsory license". The manufacturer would not be prosecuted.
This is perhaps the foremost third-world patent issue.A classic "broad" patent is the Wright brothers patent on "wing-warping" to control flight (to the Wrights, the wings were the "aero-planes", planing the air, the rest of it was the "flying machine"). The Wright brothers actually twisted the whole biplane structure -- using cables -- to bank in a turn. This later led to the development by others of ailerons, which achieve the same effect but which mechanically are entirely different. A court ruled the Wright patent still applied: what mattered was the concept of adjusting wing angles to tilt the craft.
This is a classic "broad patent" for a major new innovation. The
courts have traditionally recognized "broad" patents, but somehow in
software this distinction is often lost.
History of software patents
For a long time, software was held to be unpatentable,
as mathematical algorithms are unpatentable. Any fundamental
mathematical or physical laws are unpatentable.
1972: Gottschalk v Benson (wikipedia): You can't patent a mathematical algorithm (in this case a number-format-conversion algorithm). More below.
1973: ATT somehow manages to patent the setuid bit, claiming it's
hardware. This patent was dedicated to the public domain in 1979. This
patent is certainly a deep idea: if a certain bit is set in the
filesystem information node for a file (not in the file itself), then
when the file is executed,
it runs with the privileges of its owner and not the user. Before then
(and after; see what Windows does), there were complex ad-hoc methods
for running selected programs with elevated (or alternative) privileges.
1981: Diamond v Diehr: computer + machine IS patentable. For a
long time after, software patents always described the software in
combination with some hardware device. This patent dealt with the
curing of rubber, using a computer to guide the process.
Diamond v Diehr: SCOTUS says that an invention isn't automatically unpatentable just because it contains an algorithm But PTO & lower courts read in the converse: algorithms are patentable
Note that the current business-world baseline thus rests on USPTO policy and lower-court case law, NOT congress or SCOTUS.
Problem of "non-obviousness": the rules state that it's not enough to prove it's obvious today. Uh oh. That becomes an extremely difficult burden.
To be patentable, an invention must be "novel". Novelty is usually
challenged by the presentation of "prior art":
did someone else discover it first? Often there are arguments about
this.
If prior art is published,
it can invalidate a patent. However, if it was used privately, those
users can continue to use their idea without paying royalties to the
owner of the patent, but the patent may still stand. The patent can be challenged on the grounds of
not being novel, but this is harder.
Broad patents for fundamental new ideas, narrow patents for improvements
compatibility issues: What if the default, standard implementation
is patented? Two cases where there was at least some movement away from a
patented format:
GIF => PNG
MP3 => ogg vorbis
software patent v copyright
Supreme-court cases limit the word "process" in USC Title 35, Chapter
10, §101:
Inventions Patentable: Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.