Date: Fri, 22 Jul 2005 18:09:21 -0500 From: "Matthew D. Fuller" <fullermd@over-yonder.net> To: David Schwartz <davids@webmaster.com> Cc: freebsd-chat@freebsd.org Subject: Re: Software patents and FreeBSD Message-ID: <20050722230921.GB32805@over-yonder.net> In-Reply-To: <MDEHLPKNGKAHNMBLJOLKKECGFFAB.davids@webmaster.com> References: <20050719170036.GF84047@over-yonder.net> <MDEHLPKNGKAHNMBLJOLKKECGFFAB.davids@webmaster.com>
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On Wed, Jul 20, 2005 at 01:23:23PM -0700 I heard the voice of
David Schwartz, and lo! it spake thus:
>
> The standard of proof in civil cases is simply a preponderance of
> the evidence.
Oh, quite true. A problem that needs to be resolved independant of
the patent issue, though, so it's really just a footnote. And
thoroughly plowed ground, at that.
> Establishing that an idea is not obvious is evidence that two people
> didn't develop it independently.
That doesn't follow at all, however. In fact, we already have
incontrovertible proof that it CAN be developed independantly
(otherwise, the first person couldn't have developed it, unless he
stole it from someone else, who would've had to've stolen it from
someone else, who...).
Statistical unlikeliness is no particular form of proof, any more than
proving I wasn't in Timbuktu on March 14th supplies proof (or even
evidence) that I was responsible for a murder in Switzerland on that
day. And heck, even if you could prove that I'm too stupid or too
unknowledgeable about the subject to have come up with the mechanism
independantly, that still wouldn't establish anything about the case,
because I could just as easily have stolen it from a THIRD party who
developed it independantly (and while THEY might then have a case
against me, that doesn't give YOU a case against me).
The burden of proof thus remains squarely where it belongs; if you
can't demonstrate that I stole your process, you don't and shouldn't
have any standing to call down sanctions on me.
> Against this miniscule benefit would be two huge losses:
Well, considering I don't buy your argument that such proof is nigh-on
automatic, it's hardly a miniscule benefit 8-}
Further, even putting aside the other moral and economic issues, there
are additional downsides to the whole patent concept. For instance:
Nor is it by any means self-evident even that patents encourage an
increase in the absolute quantity of research expenditures. But
certainly we can say that patents distort the allocation of
factors on the /type/ of research being conducted. For while it
is true that the /first/ discoverer benefits from the privilege,
it is also true that his competitors are excluded from production
in the area of the patent for many years. And since a later
patent can build on an earlier, related one in the same field,
competitors can often be discouraged indefinitely from further
research expenditures in the general area covered by the patent.
Moreover, the patentee himself is discouraged from engaging in
further research in this field, for the privilege permits him to
rest on his laurels for the entire period of the patent, with the
assurance that no competitor can trespass on his domain. The
competitive spur to further research is eliminated. Research
expentiures, therefore, are /overstimulated/ in the early stages
before anyone has a patent and /unduly restricted/ in the period
after the patent is received. In addition, some inventions are
considered patentable, while others are not. The patent system
thus has the further effect of artificially stimulating research
expenditures in the /patentable/ areas, while artificially
restricting research in the /nonpatentable/ areas. [0]
Yet more, besides the incentive for the patentee to rest on his
laurels, there's further incentive to NOT search hard for
improvements, as finding a "better way" would tend only to cannibalize
his assured monopoly to no advantage, since his competitors are
already discouraged from poking at the field.
So, in addition to the monopoly grant of privilege, the presumption of
guilt on the part of the defendant, and the potential overstimulation
of research expenditure in general, we've added distortion of the
research process within a specific area, and even within a specific
person. Hardly an innocuous process :)
> 1) What is and is not protected would be not be clearly defined in
> documents that become public. Scope of protection would likely be *larger*,
> especially if the person protecting has more money than the suspected
> infringer.
Indeed. They'd have more control over their own work. What's the
problem?
> 2) The terms would not be limited to 20 years for non-obvious ideas that
> become so well known that it's essentially impossible to develop them
> independently.
See above 8-}
In any event, we're not talking about ideas, but rather
implementations. You can write and copyright a program module that,
say, imports a CSV into a spreadsheet. But you don't have any
standing to restrict me from writing one doing the same thing, except
insofar as I use your code to do it. Nor, under any circumstances, do
I have any standing to claim a right to use your code without your
permission. You can't protect one person's property rights by
violating another's.
[0] Murray Rothbard, _Power and Market_, p. 1136. Emphasis in
original. See also, if you're sufficiently bored, the whole
subsection on patents, pp. 1133-1138. Page references given for
the combined edition _Man, Economy, and State with Power and
Market_ (Auburn, Alabama; Ludwig von Mises Institute, 2004).
--
Matthew Fuller (MF4839) | fullermd@over-yonder.net
Systems/Network Administrator | http://www.over-yonder.net/~fullermd/
On the Internet, nobody can hear you scream.
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