Re: GPL, yet again. (The kernel is a lot like a shared library)
On 9/11/05, Yorick Cool <[EMAIL PROTECTED]> wrote: > Larry Lessig? Larry Rosen? Séverine Dussollier? Etienne Montero? > Dave MacGowan? Pam Samuelson? Are you saying these people are on record in believing that the GPL "works" in the sense we are discussing -- forbidding the distribution, on terms other than the GPL's, of code that uses a GPL library (or other form of modular software component) through its published API? Can you provide URLs or other citations to back this up? Especially those that cite any actual law in support of their position? I will grant you Lawrence Lessig even though a few minutes' Googling shows me no evidence that he has personally endorsed this view -- but he's got very close ties to the FSF and the SFLC, and I consider him just as much an interested party as Eben Moglen himself. (Mr. Lessig is also the founder of Creative Commons and presumably the drafter of its licenses; that won't necessarily endear his perspective on licensing to debian-legal, whatever services he may have rendered on other fronts.) As for Larry Rosen, I can't see any indication from his writings that he buys into the dynamic linking ban, he just seems to think that the FSF's long-published stance muddies the waters and their willingness to stir up jihad makes it a losing proposition anyway. I am not acquainted with the writings of the others you name, but perhaps you can supply some citations. Odd though the GPL's drafting may be, I think most qualified commentators (which I am not -- IANAL) agree that it should be read to compel the release of source code for modifications or enhancements inseparable from the GPL work. Whether or not "derivative work" is really the right term for revisions commissioned by an authorized publisher (which, even if they improve its _function_ by fixing bugs, may have such trivial impact on its _expressive_ content as to provide no basis for additional copyright), it's clear that the right to authorize the publication of non-trivially modified editions is reserved to the copyright holder on the original. Even if a close reading of the GPL's text were to suggest ways to squirm around its intent in this area, it seems likely that a court would rule in the licensor's favor, at least to the extent of a conditional injunction -- publish source code or cease distribution of binaries -- assuming, of course, that suit was brought by someone whose right to register copyright in the work survives scrutiny. But no qualified source that I have yet found, other than those directly affiliated with the FSF, seems to be willing to endorse the "dynamic linking ban" any further than "well, the FSF makes these claims, and it's hard to tell what a court will think." I personally don't think it's very hard to tell what a US court will think (at least at the circuit court level and assuming competent lawyering) -- it's pretty clear from cases like Lotus and Lexmark that attempts to extend the copyright monopoly to forbid interoperation are frowned upon. It's particularly bad news when the legal monopoly is combined with market dominance in a given niche -- and there are a number of sectors in which the FSF and Microsoft have a near-total duopoly, and where neither demonstrates any qualms about leveraging its advantages to squeeze bit players out of neighboring niches. If I were a major OpenSSL contributor, for instance, I would be seriously considering suing the FSF (and perhaps other parties) under a suitable choice of unfair competition statute. (Just because a certain pro se complainant in Indiana can't find an appropriate law under which he has standing doesn't mean a genuinely injured party with a good lawyer can't.) I would be especially annoyed that GNU TLS provides an OpenSSL shim -- directly cribbed from OpenSSL headers -- and that shim is in the GPL (not LGPL) portion, specifically to ease the transition for GPL applications while maintaining the dynamic-link-ban stance towards everyone else. Don't try to tell me that the byzantine OpenSSL API suffers more from the doctrine of merger of ideas and expression than the published interface of any GPL library -- if it's legit for gnutls-extras to provide substantially the OpenSSL interface, which I believe it is under current case law in many US circuits, then the "linking ban" doesn't have a leg to stand on. If anyone other than the FSF (technically the GNU TLS contributors, I suppose, but I think a theory of vicarious liability would stick) were pulling that stunt, we would all be howling in outrage. (If you don't see that, imagine Microsoft bundling DLLs that are API-compatible with the major Gnome libraries in XP SP3, tidily integrated with the Windows native widgets, but forbidding their use from GPL applications.) It's very sad to see Debian functioning as the FSF's stalking-horse in the GPL/OpenSSL fiasco, and I would be quite surprised if you could find a lawyer outside the FSF's circle who approves. - Michael (IAN
Re: fresh review of: CDDL
On 9/10/05, Gervase Markham <[EMAIL PROTECTED]> wrote: > Steve Langasek wrote: > > I have verbal assurance from the Mozilla folks that it is, actually, > > regardless of what the various copyright statements in the tree > > currently claim. > > I don't know who assured you of that, but it's not true. In my copious > spare time, I'm attempting to complete the Mozilla relicensing effort. > It's about 99% done, but not 100%, and the remaining 1% includes code > that ships in the default build of all our products. Would it be out of place to ask what code, exactly, is involved? If some portion is actually coherent enough to constitute a work of authorship by itself, or was contributed as an extract from another work of authorship, then perhaps it would be less effort to rewrite it. If it is instead a laundry list of ten-line patch submissions by people who can't now be contacted, with no use other than to fix some bug that never occurred anywhere but in Mozilla/Netscape, then there is no work of authorship on which copyright can be claimed to be infringed. Fragmentary contributions without creative control do not constitute co-authorship -- urban legend among free software enthusiasts notwithstanding -- and I for one would not hesitate to exercise GPL rights (such as creative synthesis at source code level with other GPL works) if no identifiable MPL-only work of authorship remains. Cheers, - Michael
Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...
On 9/9/05, John Hasler <[EMAIL PROTECTED]> wrote: > If I find that Nokia is selling phones that infringe my copyright by > violating the terms of the license on my software I should not have to fly > to Finland to sue them. Fortunately, I do not, even in the absence of a > choice of venue clause. That's correct (AIUI, IANAL) -- _if_ those phones are sold, by Nokia or their authorized agent, in your home country, giving your home court personal jurisdiction (license or no license), and _if_ their non-conformance to the provisions of your offer of contract is sufficient to deny them the defensive claim of license under your jurisdiction's rules. (In the US, for instance, a "violation" that does not strike to the heart of the bargain contained in the offer of contract is unlikely to result in any remedy other than a conditional injunction, i. e., start complying in good faith with whatever terms survive contract construction or else cease and desist.) The Berne Convention specifies more or less that you can exercise the same rights as a local copyright holder in other signatory countries, and that any registration formalities involved in the prosecution of your copyright are streamlined by presenting evidence of publication in your home country. It does not automatically give your home courts personal jurisdiction over people who make and distribute unauthorized copies, derivative works, etc. without a foothold on your home soil. In the hypothetical Nokia case -- a major company engaged in international commerce -- if Nokia has a branch office in your country, you may be able to file suit locally against them (in the forum where that branch is located) for breach of contract, using the fact that they are knowingly distributing your code in some other Berne Convention signatory as evidence that they have accepted the terms of your offer of contract. If they successfully defend by claiming that they never accepted the offer and hence there is no contract, then you should have an open-and-shut case for willful infringement -- but you're going to have to file it in the country where the infringement is happening. (That court should rule that the defendant is estopped from turning around and claiming license in the copyright case -- judicial estoppel crosses jurisdictional boundaries.) In any case, you have to start in a forum where there is a plausible case for jurisdiction over the breach of contract claim, and if neither the company's business activities nor the copying and distribution are located near you, you have to travel or face the likelihood of dismissal for forum non conveniens and/or lack of personal jurisdiction. > If someone in Indonesia is infringing my copyright in Indonesia I will, of > course, do nothing regardless of the presence or absence of a choice of > venue clause in my license: suing him in the US would be a complete waste > of time and I have no money for international ventures. > > > ...Or get him extradited somehow. > > Extradition has nothing to do with civil lawsuits. Note that, in any case, a choice of venue clause in a license (a species of offer of contract, remember?) only affects your ability to sue under contract. It cannot magically grant the licensor a right to sue under the statutory tort of copyright infringement in a jurisdiction where he otherwise could not; nor does it prevent his opponent from pleading license as a defense to copyright infringement. It might actually prevent the licensor from bringing a claim of breach of contract, as a counter-argument against the claimed license, in the court where the copyright claim must be pled, if that is not the specified venue; that depends on whether the court decides neither to strike the forum selection clause nor to rule that the claim of license within the copyright proceeding brings it into the proper scope of judgment anyway. (That's how contract topics wind up in US federal courts to begin with; some statutory consideration like copyright brings the case into federal subject matter jurisdiction, so the court also has to rule on contract issues under the appropriate state governing law.) In my opinion, choice of venue (forum selection) clauses are just not a good idea in situations like shrink-wrap licenses where the "minimum contact" standard of personal jurisdiction is not met. They're legitimate when they're used to reduce uncertainty about recourse in a negotiated contract. But they don't belong in form contracts unless there is a halfway legitimate reason why the _offeror_ shouldn't have to face lawsuits in a zillion jurisdictions from one event, and they shouldn't give the offeror access to a forum where personal jurisdiction over the _offeree_ wouldn't otherwise apply. Whether or not you approve of boilerplate on cruise tickets requiring that claims of negligence, vicarious liability, etc. (as well as straight breach of contract) be brought in the cruise line's home court, or shortening the per
Re: CDDL, OpenSolaris, Choice-of-venue and the star package ...
On 9/9/05, David Nusinow <[EMAIL PROTECTED]> wrote: > Part of the issue with the existing framework of personal jurisdiction is > that we don't seem to have a clear idea what it actually is. I haven't seen > any links to documents explaining how jurisdiction is actually determined > in real life cases. Michael Poole's link from elsewhere in the thread is > the closest thing, but it's unclear to me how exactly this would work in > real world situations. Since the actual framework remains a mystery to me, > I see issues with declaring that the framework is sufficient and doesn't > need to be modified by a license. > > I've googled looking for examples of how a venue is determined normally in > international cases, but to no avail as of yet, but I'll keep looking. Some > real data would help here. A real-world example, mostly about trademark rather than copyright or contract, and not international -- but interstate and inter-circuit, defended pro se, and documented out the yin-yang: http://www.taubmansucks.com/ . Cheers, - Michael
Re: GPL, yet again. (The kernel is a lot like a shared library)
On 9/9/05, Andrew Suffield <[EMAIL PROTECTED]> wrote: > I am acutely disinterested in that debate because it's long and > boring, but there's a lot of law professors who like it and think that > the GPL does work. I suggest you go argue with them instead. Name one other than Mr. Moglen. - Michael
Re: LGPL module linked with a GPL lib
On 8/6/05, Diego Biurrun <[EMAIL PROTECTED]> wrote: > On Sat, Aug 06, 2005 at 01:15:22AM -0700, Michael K. Edwards wrote: > > It's controversial to say that RMS is occasionally reported to behave > > eccentrically? And that being a conference speaker doesn't > > necessarily stop him? > > No. But this is not what you are implying in the paragraph above. You > imply that he takes the liberty to misbehave due to the fact that he > does not get money for his speaking engagements. This is controversial > and what is worse, you have (again) no facts to back it up. So you're saying that knowing that his charity's donation is riding on his conduct would not make him feel any more inclined to comport himself with dignity? Now who's being insulting? > > Try the CODE conference in 2001, reported at > > http://www.theregister.co.uk/2001/04/06/free_software_would_have_prevented/ > > You're not seriously presenting this polemic diatribe as fact here, > are you? Polemic diatribe? Bill Thompson is a regular BBC correspondent, generally sympathetic to Free Software, opponent of software patents ( http://news.bbc.co.uk/1/hi/technology/3782771.stm ), hardly my idea of an anti-RMS ideologue. Hundreds of people were at that conference, including (as I wrote in the part you snipped) Bruce Perens, who could be asked about his recollection of the event -- if you really think there is anything to dispute; even the most sympathetic of RMS biographers usually mention that he sometimes flies off the handle when opposed on an "ethical" point. I'm something of a hot-head myself, but then I don't go around inviting critiques of my moral perspective from conference podiums, do I? [snip more flaming, except:] > In my legislation you cross the border to slander/libel with these > things at some point. I'd like to see you back that up. I'm fortunate to live in a country where it's pretty hard to prove libel against someone who's looking for the truth about a public figure, especially if it's clear that he's not motivated by personal malice. If you are incapable of judging those distinctions when you have an allegiance to that public figure, that's not my problem. - Michael
Re: FAIwiki - proposal for an other License but Creative Commons - was: Re: FAIwiki Copyrights
On 8/6/05, Henning Sprang <[EMAIL PROTECTED]> wrote: > It's in fact an interesting question if there is somebody alive and > reading mail in debian-legal. Or do we need to prove that fai is a > debian package? - dpkg/apt-cache should do that better than us. Or is it > a subscribed-only list that doesn't tell use we're not subscribed, just > stores the mails in /dev/null as long as we're not? We in debian-legal seem to be fully occupied with our regularly scheduled flame-fest. I expect that everyone will be happiest if FAIwiki content is dual-licensed GPL and your-choice-of-attribute-me-harder-license unless marked otherwise. Don't quote me on that, though; IANADD, IANAL, and currently I think a sizable minority would disagree with me on that just out of spite. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 8/4/05, Diego Biurrun <[EMAIL PROTECTED]> wrote:
> On Wed, Aug 03, 2005 at 07:24:33PM -0700, Michael K. Edwards wrote:
> > If a public figure as remarkable as RMS does not choose to gather
> > sizable donations to his preferred charity in return for his speaking
> > engagements, then perhaps conference organizers should be prepared for
> > the eccentric behavior that is occasionally reported.
>
> You wouldn't - AGAIN - be saying bad things about somebody in public
> with nothing more than rumors to back it up, would you?
It's controversial to say that RMS is occasionally reported to behave
eccentrically? And that being a conference speaker doesn't
necessarily stop him? Try the CODE conference in 2001, reported at
http://www.theregister.co.uk/2001/04/06/free_software_would_have_prevented/
. Bruce Perens was also a speaker; I wonder how he remembers the
occasion?
> Not being a native speaker I'll have to admit that there are subtleties
> in English that escape me. You are directly questioning another person's
> character with your - unsubstantiated - theories and spreading those
> claims in public. This is extremely rude and at some point crosses over
> into the realm of what dict.leo.org translates into English as slander
> or libel.
Dude, the guy's a public figure, he advocates public policy positions
which are intimately tied to his personal fortunes, he participates in
and condones the repetition of what my research (IANAL) says is a
false set of claims about how copyright licenses work -- claims whose
truth or falsity has real consequences -- and if you actually bother
to _read_ what I wrote you'll see that I never stated more than a
suspicion based on what public evidence I had dug up so far.
"Slander" and "libel" are serious accusations and if you don't know
what they mean it's incautious at best to sling them around.
Just as a little reminder, here are the things I wrote that you called
"slanderous":
# Although I have no personal knowledge on the financial side, it
# certainly looks to me like it has made them both rich men. Little
# snippets in the public record -- Jim Blandy's comment at
# http://www.jwz.org/doc/lemacs.html about RMS's "luxurious pad on the
# fourth floor of posh NE43", the indications from Moglen's letter to
# Vidomi and Fluendo's defense of GStreamer that he has ways of
# extracting revenues from his role in the FSF, back-of-the-envelope
# calculations involving the typical conference speaker fee -- suggest
# to me that their tax records would make interesting reading. I could
# be completely wrong; they could be scraping by on nominal salaries
# from the FSF and Columbia University, plus a MacArthur fellowship here
# and there; but it's enough for me to take their bizarre,
# uncorroborated assertions about copyright law with a grain of salt.
# There's a lot of money to be made in this
# area (although it's a pretty hard life if you have close friends and
# like your home); and if RMS had a way of laundering the money ("don't
# give it to me; but donate to the FSF if you like") so as to appear
# saintly, he wouldn't be the first.
Although I regretted the use of the word "laundering" immediately on
re-reading the latter, and went to some effort to find what facts I
could in the public record so as to lay that particular suspicion to
rest, you will find neither untruth nor malice in the above.
Skepticism, yes, shading over into cynicism in the latter paragraph;
but the typical (profit-seeking) conference speaker's fee, and the
typical retainer for a "legal opinion" effectively estopping your
prospective opponent's lawyer from arguing otherwise in court, are
real money. I have no compunction about saying that I want to know
where that money goes -- and if RMS doesn't collect speaker fees, what
favors (if any) he asks instead.
> This should be a dead giveaway that you should not have speculated in
> the first place, much less on a public mailing list that will be
> archived from here to eternity.
I'd sure rather look back on what I've written, errors and all, than
on ignorance and complacency.
[snip fairly empty flames from both sides]
Diego, I don't care whether you get anything out of what I write or
not. Nor do I think that anyone who gives two shakes about what the
truth is cares whether _you_ "judge [my] evidence poorly researched";
they're presumably going to judge for themselves. But I do feel a
little down about this particular episode (my cynicism got the better
of me, in a mild sort of way, thinking about the enrichment potential
of the rubber-chicken circuit), and I don't particularly like being
kicked while I'm down. I doubt it impresses anyone else, either.
- Michael
Re: Re: BitTorrent Open Source License (Proposed Changes)
On 8/5/05, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Michael K. Edwards wrote: > > >a self-selected crew of ideologues with brazen contempt > >for real-world law and no fiduciary relationship to anyone is not too > >swift -- whether or not they have law degrees (or university chairs in > >law and legal history). Not all debian-legal participants deserve to > >be tarred with that brush, but the ones who do are numerous enough and > >loud enough to give me pause. > > > You're referring to yourself here, I assume? I read, and am enlightened! To repeatedly disclaim authority, either as a representative of the community or as a subject matter expert, is to self-select as an authority! To acknowledge error, in response to concrete evidence brought to bear by others or by one's own further research, is to be an ideologue! To respect the integrity of judges, cite extensively from case law, and take seriously precedents raised by others is to have brazen contempt for real-world law! War is peace! Freedom is slavery! Ignorance is strength! (I do, however, have no fiduciary relationship to anyone involved -- and I'm certainly planning to keep it that way at this rate.)
Re: LGPL module linked with a GPL lib
On 8/4/05, Raul Miller <[EMAIL PROTECTED]> wrote: > Nevertheless, intellectual property is fundamentally different from > real property, and the differences, in the general case, make it > impossible to determine the boundaries of intellectual property. It's a _little_ more abstract than real property ownership, which is a lot more abstract than possession of a chattel; but it's rather less abstract than, say, ownership of a 401(k) account -- a device where you have limited control of some numbers in a brokerage firm's computer, and the changes you request may or may not result in the actual "trading" of some mutual fund "shares", which in turn once in a while results in the "trading" of "common stock" of some companies, which means God knows what. Yet the law has no great difficulty with that kind of "property" either. If you're looking to set this kind of a limit on the property abstraction, you're about 400 years too late (joint stock companies; 300 for copyright, of course). > Establishing property rights on intellectual property is like establishing > property rights on shadows. Shadows very definitely exist, and you can > write laws about them, but they shift and move depending on circumstances. > > And note that I've never claimed that intellectual property cannot be > the subject of law. I've instead been claiming that such law can never > equal the laws for real property. There's simply too much uncertainty > about the domain for that to work. Intellectual property law is so much simpler than real estate law (let alone securities law), and so unlike your "property rights on shadows" straw man, as to make this whole line of inquiry quite fruitless. Copyright, patent, and trademark are imperfect but workable, and they reflect a social consensus that may be fraying in spots (media "consumers" do like their free beer, and the MPAA/RIAA counterattack has also done quite a bit of damage) but isn't terribly amenable to preaching from either direction. > I said no one wants to take these issues to court, not that they are > not taken to court. But I wasn't conveying my thoughts properly -- > what I meant to point out that letting the court resolve copyright > issues is extremely unpopular -- it's just not wise in most circumstances. Nobody wants to go to court if they don't think they have something substantial to gain by it; going to court is expensive and risky. But I certainly have no interest in letting anyone _other_ than legislatures and courts resolve these issues if the parties directly involved cannot -- not DRM schemers, not P2P "sharers", not captured regulators, and not RMS either. > In those cases, the problem is not one of physics, but one of > choice. The properties could be surveyed more precisely, > if someone cared enough to do so. With intellectual property, > there is nothing to be surveyed. Dude, it's just _not_that_hard_. The copyright, patent, and trademark systems work just fine. How do I know? Because in almost every court case in this area I read about, one side or both is a bunch of assholes. Very, very rarely do you see the bellwether of bad law -- a case where two parties who are minding their own business, coloring within the lines, living and letting live, and peaceably making a buck wind up duking it out in court. You get a few cases where both sides seem sincere about thinking they were in the right, but wound up in a competitive conflict that hinged on a subtle point -- cases like Fogerty v. Fantasy and Lotus v. Borland. But you get a lot more cases where it's hard to have much sympathy for either side, like Sun v. Microsoft and Napster v. RIAA -- cases where greed meets greed and they're either fighting over the scraps of a deal gone wrong (usually an ill-conceived deal in the first place) or tussling over who controls _access_ to a market where square deals are few and far between. > Compare: > > http://www.law.cornell.edu/copyright/cases/202_F3d_1227.htm > "Aalmuhammed never had a written contract..." > > with > > http://www.gnu.org/prep/maintain/html_node/Copyright-Papers.html > "Before incorporating significant changes, make sure that the person >who wrote the changes has signed copyright papers and that the Free >Software Foundation has received and signed them." Sorry, I didn't make my point clear here, though I've made it on debian-legal before. Aalmuhammed could not exert any of the rights of a copyright holder because his contribution did not rise to the level of authorship on any work that could stand in isolation. (Stand as a coherent chunk of creative expression; please don't go haring off into copyright-irrelevant engineering criteria like whether it can be executed without linking to some other stuff first.) I do not find it remotely plausible (IANAL) that patches, even quite extensive patches, knowingly contributed on GPL terms and incorporated by a maintainer who retains creative control, represent any obstacle
Re: LGPL module linked with a GPL lib
I wrote: > RMS may sincerely > believe that the GPL is a successful hack around contract law and the > limits courts have imposed on other software copyright holders; but I > don't see how a court could possibly agree with him. Not to be paranoid or anything, but a reminder-disclaimer: The GPL clearly is, and in my non-lawyer view should be, enforceable on people who make and distribute copies of GPLed software, modified or not. It just doesn't, as written, and in my view shouldn't no matter how it is written, compel the use of the GPL on software whose relationship to a GPL work is a matter of economics and engineering (through a published API) rather than modified or adapted expressive content. Tiredly, - Michael
Re: LGPL module linked with a GPL lib
I wrote: > They're a sidetrack to be sure; but kind of an interesting sidetrack. > His personal history and philosophy strike me as more reminiscent of > Dominic de Guzman or Benedict of Nursia than any modern figure. In > any case, I certainly intended no slur on RMS by that, nor on any > participant in this discussion. You know, it's funny; I make a comment like that, and a few hours later I run across Nikolai Bezroukov's comment that "some of [RMS's] recent letters look like they have been written by a medieval theologian", and I feel dirty. Not because I meant a slur, because I didn't; Dominic and Benedict seem to have been decent, even saintly, men, and leaders of men and women, and comparisons to them are complimentary in a way that, say, a parallel to Francis of Assisi (nice to animals, may have composed a good prayer or two, but a certified kook) wouldn't be. But as thick as my writing style is, I'm sure it's hard to tell the difference between my cumulative critiques and a real hatchet job like Bezroukov's. And once in a while I go off half cocked (not with "economic superiority of the free software system", which was a deliberate re-framing of RMS's published philosophy, but with an apparently wrong guess about which non-programming source of income keeps his boat afloat), and I find myself wishing I'd left the whole topic alone. But dammit, this is not a game, this is people's lives and livelihoods. Using deception about the law to claim rights over other people's work is wrong, no matter who is doing it. RMS may sincerely believe that the GPL is a successful hack around contract law and the limits courts have imposed on other software copyright holders; but I don't see how a court could possibly agree with him. Where the money comes from, and where it goes, do have some bearing on whether it's proper to accept the FSF's unsubstantiated assertions on legal matters; and I want to know the truth, and to see it known and acted on by people whose influence over the free software ecosystem is greater than mine. - Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Raul Miller <[EMAIL PROTECTED]> wrote: > There's probably a lesson in here somewhere. > > "information" is also a term used to describe how people > communicate. Indeed, among other things; and it is a term sufficiently broad and vague as to have very little utility in law. > You try to draw a distinction between "ideas" and "information". > And, indeed, they are spelled differently -- they have different > physical representations. And yet, both of these terms refer > to the same underlying concept, in this context. And yet, the law does distinguish quite successfully between "ideas" and "expression"; and disputes about that borderline rarely get as far as an appeals court, usually when someone is deliberately pushing that border for economic gain at another's expense. > If we can't even manage this issue in the context of a single > paragraph, what hope do we have of codifying protection > for newly thought up instances of this issue, in law? That would be the reason that the integrity and competence of judges matters. Your Pyrrhonist (I just learned that nifty word) jump from imperfect certainty to quietism does not persuade me. > Answer: codification is easy -- it's easy to put words down on > paper and call them law -- but it's unlikely that this codification > will ever be meaningful in a general context. > > Thus, no one really wants to take copyright issues to court, > because fundamentally the laws don't make sense. When > taken at face value, the concepts are simple enough, but > the protected works are not real property. As you point out, > they're not even chattels. If you think no one takes copyright issues to court, then you have a very different perspective on the literature than I do. Copyright law mostly makes sense to me, and I rarely feel that I would have decided a recent appellate case differently (though I favor Corey Rusk over Rano and am not that fond of Eldred v. Ashcroft). I do not think this can be attributed to a tendency on my part to accept authority. :-) > (Though I challenge you to show me any cases of real > property which does not stake out a physical chunk > of the planet. (I'm aware that you can, at least in some > cases, move dirt from one location to another, without > changing the legal definition of the property boundaries. > But my point is: you can determine those property boundaries > because of physical properties of matter, such as the fact > that mass is conserved, which do not apply in the realm of > intellectual property.)) You certainly have a point that the boundaries of a copyright (or patent or trademark) holder's rights are imperfectly defined; but if you have ever owned rural property you may be aware that the same is often true of land, although survey-grade (centimeter-accurate) GPS helps. :-) Modern copyright is an imperfect system, but it sure beats hell out of what preceded it. > As for xemacs and emacs: RMS has not accepted xemacs > code into emacs because the xemacs developers would not, > or could not, transfer copyright ownership on that code to > the FSF. Which has little to do with (US) copyright law, given precedents such as Aalmuhammed v. Lee; but I probably would have done likewise in his position. I have used both within the past couple of months, and each has its strengths; but if I had the skill and the free time to do so, I think I would rather contribute to GNU Emacs, and would cheerfully assign any copyright I might possess in those contributions to the FSF. For the contributors to Lucid Emacs and XEmacs to have refused to do so strikes me as somewhat churlish, and indeed to reflect a delusional attitude about the value of "intellectual property" as opposed to customers' and collaborators' trust. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Diego Biurrun <[EMAIL PROTECTED]> wrote:
> That would again be news to me. I've just given two talks at LinuxTag
> (the biggest Linux-related event in Europe) and all I got was two nights
> in a hotel room. That's what all the speakers get, some do get part of
> or all of their travel expenses covered, but no more than that.
Then my guess would be that LinuxTag can fill the rooms with people
interested in Linux-related topics without having to shell out speaker
fees. Which doesn't say that some of the speakers, perhaps even
yourself, couldn't earn speaker fees elsewhere if they tried. If a
public figure as remarkable as RMS does not choose to gather sizable
donations to his preferred charity in return for his speaking
engagements, then perhaps conference organizers should be prepared for
the eccentric behavior that is occasionally reported.
> > There's a lot of money to be made in this
> > area (although it's a pretty hard life if you have close friends and
> > like your home); and if RMS had a way of laundering the money ("don't
> > give it to me; but donate to the FSF if you like") so as to appear
> > saintly, he wouldn't be the first.
>
> You're again bordering on slander, I'd tread more carefully if I were
> you.
Still far from slander; but I confess that I regretted this
immediately, and was relieved to be able to find enough public
evidence in a matter of a couple of hours to refute my own
speculation, at least as regards the FSF. Treading carefully does
not, if I may say so, seem to be _your_ specialty.
> Speaking of (real) saints: Mother Teresa accepted donations directly and
> passed them on. There is nothing unethical in that.
Not in the least. It would only be (somewhat) unethical if a large
fraction of the donations wound up back in one's own pocket; and that
doesn't seem to be the case with RMS.
> > > Your claims are slanderous. I would suggest you to research better
> > > before making claims with such serious implications.
> >
> > I'm just telling you how it looks to me, and pointing you to where I
> > got what evidence I have so that you can judge for yourself.
>
> And I judge your evidence poorly researched. This does not enhance your
> credibility when you expound at length (and length and length) on legal
> affairs.
It's really interesting that people who show no evidence of having
invested any effort whatsoever themselves in research of any aspect of
this topic are so quick to reject, not only the slightest speculation
beyond the proven facts, but any evidence I may have brought to bear
on any conclusion distasteful to them. Ignorance is bliss, I guess.
- Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Jeff Licquia <[EMAIL PROTECTED]> wrote:
> I consider it a "grievous error" to claim that RMS "preach[es] the
> economic superiority of the free software system". You were not calling
> for an inquiry of any kind in that statement; you were simply snarking.
> And you were called out for making an incorrect statement.
I think my statement is correct as it stands; have you any substantive
argument against it? RMS seems to think that it would be a superior
economic model -- more conducive to the public good and more fair to
individual creators -- if copyright were abolished and copyleft
enacted in its place. He also seems to think that the creation of a
copyleft microcosm, and the prohibition of its use in conjunction with
works outside it, is consistent with the economic bargain embodied in
current law. I differ on both points -- and if it's snarking to point
out that, by relying on his unique public notoriety to put food on the
table, he's not exactly practicing what he preaches, then yes, I'm
snarking.
> What I'm curious about now is why you felt the need to blather about the
> nature of ethics and economics, instead of just letting the stupid
> comment go, and then get even more defensive when someone points out the
> absurdity of your blathering.
This point is rather central to my rejection of his claim to the
ethical high ground. An "ethical" stance that fails both
economic-model ("what if this were the social bargain imposed on
everyone?") and economic-tactic ("is it at least marginally
productive, at an acceptable cost to society, for some people to act
thus within the existing social bargain?") tests is no basis for an
equitable claim as far as I am concerned. There is of course no
reason to demand that any particular activity of his, driven by his
personal ethics, be marginally productive; but if he wants to ask that
society at large recognize and honor his ethical system with a
privilege of exclusivity granted to no other, he's going to have to
defend it on utility grounds.
> You are, of course, free to refuse to admit error, just as we are free
> to draw whatever conclusions we might from your refusal. But I'm
> curious to see how far this rabbit hole goes.
Now who's snarking? Which is fine by me; but I do not yet find you
particularly persuasive on the substantive issues.
Cheers,
- Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Raul Miller <[EMAIL PROTECTED]> wrote: > I think his point is that because of the nature of ideas -- that they don't > exist in and of themselves, but are abstracts used to describe > communication between people -- that it's impossible to codify > property rights protecting them. There will always be cracks > in the structure. As I understand it, no one in recent centuries has tried to codify property rights protecting "ideas" as such; neither copyright nor patent nor trademark law presents any barrier to the free dissemination and use of ideas, and trade secret law creates no property right and governs nothing but the breach of duties voluntarily accepted with regard to unpublished information. Imperfect but workable property rights have been created for original expression (at a rather literal level), industrial applications of an invention, and symbols of authenticity; how are these any less amenable to codification than the ownership of a parking lot, a skyscraper, or anything else for which a valuation must be based on the income that may be derived from controlling its use rather than the incremental cost of using it? > On the one hand, you have "property". Property exists as matter, > and we have reason to believe (the laws of thermodynamics) that > mass is conserved. A common misapprehension. "Chattels" are matter. "Property" is a legal right, i. e., a social convention. I'm not trying to go toe-to-toe with you in the pedantry stakes; but your analogy is faulty right from the outset. The whole _point_ of making copyright, patent, and trademark forms of property is that they become subject to the great body of law that governs legal property rights. They can be sold or transferred without running afoul of "continuing performance". They can be used as security for a loan. A non-exclusive right to use them can be offered for a fee or bartered in exchange for a similar right. The owner's exclusive rights may be limited for the sake of the public good, by analogy with public right-of-way and environmental protection laws. [snip] > Now, granted, these laws are sometimes enforced (when there's > enough money involved). But, for example, RMS has made it > a practice to deliberately avoid dealing with anything which has > even a hint of this enforcement associated with it (for example, > consider the emacs / xemacs fork). I have no idea what you are trying to prove by this example, but you certainly pique my curiosity. What law could RMS have sought to enforce on anyone involved in Lucid or XEmacs? > Some people consider him rather poorly for making these kinds > of choices, but his loss of credibility in that sense doesn't seem > to have much to do with the stuff you're talking about. Actually, the whole Lucid thing excites my sympathy for RMS rather more than the converse. Whatever the facts of the matter may have been, some of the messages in Jamie Zawinski's archive (notably Richard Gabriel's initial public sally) strike me as unnecessarily unkind. In his position I would probably have handled it less gracefully, leaving no one better off. How can I not admire a man whose response to a hostile takeover of his pride and joy begins: The long delay in releasing Emacs 19 is the FSF's fault. (In some sense, therefore, mine.) While it's regrettable that there are multiple versions, I can't blame people for filling the gap that the FSF left. One of the goals of the copyleft is to allow people to do this--so that one central maintainer's lapse does not hold back the rest of the community. > Well, except that you're indicating that people seriously think of > him as a saint. But... there's also plenty of people who think > of him as something other than a saint. > > Personally, I just don't think that issues bearing on sainthood are > all that interesting. They're a sidetrack to be sure; but kind of an interesting sidetrack. His personal history and philosophy strike me as more reminiscent of Dominic de Guzman or Benedict of Nursia than any modern figure. In any case, I certainly intended no slur on RMS by that, nor on any participant in this discussion. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Jeff Licquia <[EMAIL PROTECTED]> wrote: > > In any case, there's a perfectly good argument that for > > Debian to piss off the FSF is not a good idea whether or not they have > > a legal leg to stand on. I personally would be ashamed to lend my > > good name to their conduct in recent years, but YMMV. > > In this case, why do you continue to argue with what debian-legal thinks > is the prudent course of action for Debian to take, especially when you > admit that you may not agree with Debian's goals? Although I think that argument's perfectly good, I think the arguments on the other side are sometimes better. And as I've written elsewhere, the reasons why one says one is making a particular decision can sometimes have bigger legal consequences than the decision itself. Although I have no direct stake in the outcome of these debates (IANADD), I care enough about Debian's well-being to have put rather a lot of time and thought into the matter. Now, where did I say that I don't agree with Debian's goals? I respect Debian's priorities -- Debian's users and Free Software. My own goals are rarely, if ever, in conflict with them. I am largely satisfied with the definition of Free Software given in the DFSG. But I don't believe that _either_ of Debian's priorities is well served by misunderstanding or misrepresenting the applicable law, by citing fear of legal action rather than courtesy to the FSF as a reason for seeking "GPL exemptions" from upstream, or by hostility to ISVs who are making an effort to play fair. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Jeff Licquia <[EMAIL PROTECTED]> wrote: > I may not be much in the legal department, but you are now commenting on > a field I am trained in. Suffice it to say that you have not thought > seriously about the implications of your conflation of ethics and > economics--or that if you have, then I want nothing to do with you, and > you have no business lecturing this group on any subject. You seem to have completely missed my point. Ethics is not dictated by economics; it's the other way around. What possible use is an economics -- a science of human motivation -- that is not informed by ethics? My personal ethics extend into areas that economics cannot reach; but when making an ethical argument for a public policy, I recognize that it must be supported both by an argument from the public good (utility) and an argument that it is fair to individuals. > If ethics is allowed to be more than sociology, then RMS's position is > quite clear: ethical concerns must have priority over economic ones. > Stipulating any particular set of ethical standards, I'd say that's not > only a clear position, but a rather uncontroversial one. We take a dim > view of killing for profit, for example, even if such a decision > adversely impacts the hired gun's ability to make a living. Wow, that's some straw man. If you think you can make an argument from the public good for legalizing assassination for pay, I'd like to hear it. > Obviously, the question of software freedom is not on the same level as > killing for hire, and there are many disagreements regarding the > specifics of the ethical questions and their importance. But you seem > intent on shutting down the debate (or, less charitably, trying to > regain ground from making a grievous error and being called on it) by > simply defining it out of existence. No, I just explained where I was coming from in characterizing RMS's public posture as "preach[ing] the economic superiority of the free software system". How you can call this an attempt to shut down the debate is beyond me. If you think it's a "grievous error" to use the word "economics" for an inquiry into the conformability of RMS's expectations about GPL "enforcement" with the balance of public and private interests embodied in the law, then it is an error from which I have no wish to recover. > If this is your way of handling inconvenient evidence, then I have even > less confidence in your legal analysis. What inconvenient evidence did you have in mind? - Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Jeff Licquia <[EMAIL PROTECTED]> wrote: > It could be the case that everyone who disagrees with you whom you think > should know better has ulterior motives. However, I think you need to > consider the possibility that you simply do not understand the subject > matter as well as you think you do. That you stoop to character > assassination as a defense suggests that you are incapable of holding > such a low opinion of yourself. Can you not tell the difference between "character assassination" and an inquiry into the impartiality of a person held up as an authority? I may well be wrong about the law, and you are welcome to inquire into my motivations as well -- though I claim no authority, only whatever merit the substance of my arguments may carry. I have corresponded (very briefly, on this list) with Eben Moglen and (at greater length) with the FSF, and asked them what basis they have for their position; their argument is, as near as I can tell, _purely_ derived from his personal authority and public stature. To the extent that anyone's motives can ever be deduced from their conduct, don't you think inquiring into his public conduct is fair game under the circumstances? > I suggest that you may need to find yourself a more credible champion > for your position if you want us to accept it. If not taking Eben Moglen's word over my best effort at understanding the law destroys my credibility in your eyes -- or if I could only retain credibility with you by dissembling the implications for his integrity if he himself knows better -- then I can hardly expect another champion to succeed where I fail. Accept nothing I say without evaluating its evidentiary basis; then my credibility doesn't enter into it. - Michael
Re: LGPL module linked with a GPL lib
On 8/3/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 8/2/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > Mostly I care about the freedom to pursue what is for me > > both an intellectual interest and a trade, on terms which more or less > > reflect an accurate perspective on the surrounding law and economics. > > Misrepresentations and charlatanry draw my scrutiny, whether they come > > from saints or sinners. > > I have no problem with you pursuing any such intellectual interests. > > However, this probably isn't the right list for posting random facts. Sigh. Did anyone else have trouble understanding that "both an intellectual interest and a trade" referred to computer programming? Do you not think these "random facts" are relevant to assessing whether two prominent individuals' preferences and assertions should have the effect that they currently do on your and my pursuit of that trade, and to whether they can be relied on for a disinterested analysis of the applicable law? Have these questions no relevance to debian-legal? > I'd suggest debian-curiosa. Or, if anyone wants to create it: debian-saints. Having intimated that I thought it likely that RMS's role in the FSF had made him a rich man, and having been called on that by Diego Bierrun, I felt obliged to report on what facts I could easily find in the public record -- which, as it turns out, don't lend much support to the idea that he is piling up personal assets. (But I doubt he misses a meal very often; I expect his other material needs are more than met, including an ample supply of computer-related toys; as near as I can tell he has done nothing for any reason other than because he feels like it since 1985 or so, if ever; and I count myself as rich partly for similar reasons, whatever one's net worth may be.) I would not have taken the trouble of that particular inquiry except in response to Diego's accusation of slander, which would not have been accurate anyway but did prompt me to go the extra mile. - Michael
Re: LGPL module linked with a GPL lib
On 8/2/05, Patrick Herzig <[EMAIL PROTECTED]> wrote: > RMS doesn't preach the economic superiority of free software. If you > fail to understand even such a well-explained position I wonder what > your references to all kinds of precedents and such are worth. You've got a fair point, in that RMS doesn't see his arguments as preaching economic superiority; and certainly many commentators have contrasted RMS's "ethical" perspective with, say, ESR's "economic" perspective. I don't entirely agree with the way this contrast is portrayed, and in particular I think the "ethical"/"economic" dichotomy is a false one. "Ethical"/"financial", perhaps; but that's a calculus of personal motivations that isn't really all that fruitful to discuss. Implicit in my perspective is the view that ethics is the study of human motivation, and economics is the application of the fruits of this study to the public sphere; finance is just probabilities and algebra. So, as I say, I don't fail to understand RMS's attitude that his arguments are "ethical" arguments and trump "economic" considerations; I just don't agree. He is welcome to that position with regard to his own choice to publish his source code, and welcome to exhort others to go and do likewise (as I have done, and am likely to do again, from time to time.) But when he asks for the legal power to compel others to do so, in exchange for something he has done or offers to do, he is well into the economics zone. RMS rejects the phrase "intellectual property", mostly for reasons of legislative history and philosophy which I consider insightful and with which I agree, but also partly out of a belief that whatever exclusive privileges a creator of knowledge should have over his work should not be codified as property rights. (He also seems to think that they aren't currently codified as property rights, which perplexes me; but that's another line of argument.) But he doesn't believe in "laissez faire", either. Now, in his view, there is an a priori ethical imperative to share knowledge, and in the case of software products (which are a sort of distillate of knowledge yet capable of being sold in a form where that knowledge is inaccessible), there is an ethical obligation to disclose the secrets of their making to all who use them. He would like to persuade the world that this ethical imperative should be made law; but failing that, he wants to retain a sort of non-property-based control over the terms on which others use his work (and works whose authors signify their alliance with him by attaching the GPL to them). He demands (or perhaps just assumes) the power to apply his ethical calculus when a work that he controls has played a significant role in the creation of another's work, not just through literal borrowing but by building on the utility of the existing work -- i. e., over any work bearing an economic relationship to his. This brings us to the crux of the matter. RMS seems to think that he has, or should have, this power as a natural right; and I (obviously) don't. I see an author's (or inventor's) rights over his creation as entirely socially created; I think that the law as it stands does a pretty accurate job of capturing that social consensus; and I don't favor attempts at extra-legal end runs around the legislative and judicial process, irrespective of the end in view. There's a philosophical difference here that goes back at least to Hobbes and Hume, if not to Pythagoras and Protagoras. This is perhaps not the forum in which to debate this well-trodden topic further. :-) So does the law in this area follow Hobbes or Hume? Judge for yourself. In any case, I wholly encourage you to deny my selection and exposition of precedents any force of authority. If they are useful to you in making up your own mind, so much to the good; if not, that's fine too. Cheers, - Michael (IANAPhilosopher, either)
Re: LGPL module linked with a GPL lib
I wrote: > So yes, inquiring minds want to know. And this inquiring mind is now satisfied as to what probably pays RMS's rent lately -- the ~$268K Takeda Award he received in 2001. (You couldn't keep a family in Cambridge for four years on that, but RMS doesn't have that problem.) Me, I'd be kind of ashamed to preach the economic superiority of the free software system while living on grant money and conference banquets; but YMMV. Again, I don't really care how RMS makes his money; I do care, a little, how Eben Moglen makes his, but only because he uses his status as a law professor at a respected university to bolster claims I find incredible. Mostly I care about the freedom to pursue what is for me both an intellectual interest and a trade, on terms which more or less reflect an accurate perspective on the surrounding law and economics. Misrepresentations and charlatanry draw my scrutiny, whether they come from saints or sinners. ObOnTopicForDebianLegal: This thread was originally about GStreamer. The FAQ at http://gstreamer.freedesktop.org/data/doc/gstreamer/head/faq/html/chapter-legal.html reflects the public posture of that project's principal contributors (and principal corporate funder, Fluendo) on the matter, and claims to be "certified by the FSF lawyer team and verified by FSF lawyer and law professor Eben Moglen." Whether or not it accurately reflects the relevant law, I would expect it to form a pretty strong basis for estopping the people who have published it from making conflicting arguments in court. IANAL, TINLA. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 8/2/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 8/2/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > I'm just telling you how it looks to me, and pointing you to where I > > got what evidence I have so that you can judge for yourself. The FSF > > is notoriously unforthcoming about their financial dealings, and the > > cash flows involved are not chump change (see the numbers disclosed by > > Jamie Zawinski in the Lucid Emacs saga). Whether or not you think RMS > > and Eben Moglen are cashing in personally (about which I have no > > evidence), if you are willing to take their uncorroborated claims > > about the legal strategy at the heart of their enterprise at face > > value, you are a more trusting man than I. > > This sounds like something appropriate for the scandal column of a > tabloid. But what's the relevance of this issue to debian-legal? Scandal columns of tabloids don't generally comb the public record for evidence on both sides of an issue, which I am making a sincere effort to do (see the rebuttal I just sent of my own speculations on FSF finances). This private organization and its affiliates are marketing an approach to my career and livelihood, and presumably that of many debian-legal participants, which rests on assertions about the law that my (unqualified but dogged) research says are false. Millions of dollars have passed through the accounts of entities that RMS and Eben Moglen control over the past 15 years -- entities whose entire justification for existence is the promotion of their views on these topics. Debian-legal has generally taken these two people's views at face value, without asking for their basis -- with some pretty serious consequences for projects like KDE and OpenSSL, and for people who might want to bring ISVs onto Debian and Debian-derived platforms. That is of course entirely within their rights; Debian may be content to toe the FSF line with respect to linking relationships whether or not it has any basis in law. But I don't seem to be the only one around here interested in the question of what might underly that agenda and what risks it might expose Debian to down the line. So yes, inquiring minds want to know. - Michael
Re: LGPL module linked with a GPL lib
I wrote:
> There's a lot of money to be made in this
> area (although it's a pretty hard life if you have close friends and
> like your home); and if RMS had a way of laundering the money ("don't
> give it to me; but donate to the FSF if you like") so as to appear
> saintly, he wouldn't be the first.
If there's any "laundering" going on (hmm, I picked an explosive word,
didn't I?), that's not how it's done. I took a quick look at the most
recent IRS Form 990 I could find for them (fiscal year ending Sep
2003). Apparently no director (those two included) receives any pay,
only one person (the Director of Communications) is paid more than
$50K, and there isn't room to hide much of a back-door in the numbers
the CPA signed off on ($631K expenses excluding COGS, $346K of which
is salaries and the rest of which is accounted for to my
unqualified-because-I'm-no-accountant-either satisfaction). Without
going to the trouble of more than spot-checking prior years' reports,
I'm inclined to say that the FSF per se is fiscally clean (insofar as
"donation" is really the right word for some of those non-sale
revenues).
Sidetrack: It's very interesting to see that donations doubled to
almost $400K in the 1998-1999 fiscal year, without cutting into
product sales; but then the revenue mix shifted abruptly towards
donations in fiscal 2000 -- a one-year spike, perhaps (I'm guessing)
composed of corporate "donations" related to the KDE/GNOME brouhaha.
Fiscal 2001 (Oct 2001 - Sep 2002) was a hard year for the FSF, as it
was for almost all US non-profits; but unlike many, the FSF seems to
have rebounded nicely. Good for them.
On the other hand, no speaker fees appear in the FSF's fiscal 2003
revenues (unless they're inside the $584K in donations or $243K in
product sales) -- maybe they go through some other non-profit instead
-- and any money received directly by Mr. Moglen from the likes of
Vidomi and Fluendo in his capacity as an attorney would be off the
FSF's books. Something pays Mr. Stallman's rent, and I'd be pretty
surprised if a 1990 MacArthur (nominally given in his capacity as
President of the League for Programming Freedom) stretches that far.
My skepticism remains less than completely cured.
I'm not an investigative journalist, I'm not out to do a hatchet job
on the FSF or the individuals involved, and I don't really care how
they make their money unless there's something genuinely extortionate
about it (for which I have no evidence). There are a lot of things
about RMS and the FSF that I respect and, with reservations, even
admire. But I repeat that, if you want to know what actual law
applies to the GPL, uncorroborated assertions by heavily interested
parties are probably not a reliable indicator.
Cheers,
- Michael
Re: LGPL module linked with a GPL lib
On 8/2/05, Diego Biurrun <[EMAIL PROTECTED]> wrote:
> That RMS gets paid for all the speeches he gives would indeed be news.
> I have first-hand knowledge that he follows invitations to speak about
> free software when provided free travel and lodging.
Do you know the numbers? As I wrote, I don't. For all I know, RMS
never solicits or accepts a speaker fee -- although if so he would be
quite extraordinary among conference speakers, even among speakers on
free software topics. I believe the typical conference speaker's fee
in this area is in the $5K-$20K range (compare
http://www.speaking.com/speakerindexes/internet.html ), often more for
futurists (several $50K and up speakers at
http://www.speaking.com/speakerindexes/future.html ) and actual
celebrities with drawing power (usually reported simply as "rumored
six-figure speaker fee"). There's a lot of money to be made in this
area (although it's a pretty hard life if you have close friends and
like your home); and if RMS had a way of laundering the money ("don't
give it to me; but donate to the FSF if you like") so as to appear
saintly, he wouldn't be the first.
> Your claims are slanderous. I would suggest you to research better
> before making claims with such serious implications.
I'm just telling you how it looks to me, and pointing you to where I
got what evidence I have so that you can judge for yourself. The FSF
is notoriously unforthcoming about their financial dealings, and the
cash flows involved are not chump change (see the numbers disclosed by
Jamie Zawinski in the Lucid Emacs saga). Whether or not you think RMS
and Eben Moglen are cashing in personally (about which I have no
evidence), if you are willing to take their uncorroborated claims
about the legal strategy at the heart of their enterprise at face
value, you are a more trusting man than I.
Cheers,
- Michael
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Steve Langasek <[EMAIL PROTECTED]> wrote: > So you believe that posting your life story to debian-legal qualifies > as "grounding in real-world law"? It qualifies as a reminder to anyone who's considering taking me seriously that they're doing so based on the arguments I raise and whatever opinion of me they may derive from them, not my credentials. Given that I am making myself somewhat conspicuous by espousing unpopular positions and citing case law out the yin-yang, it seemed prudent to do a little more to cover my ass than sprinkle "IANAL" around liberally. Cheers, - Michael
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > Myself, I would no more redistribute a peer-to-peer client offered > under a license like BitTorrent's than I would play Russian Roulette > with a loaded Uzi. But YMMV. I suppose I should explain that. I may or may not have used one BitTorrent client or another for the purpose of obtaining, say, an Ubuntu LiveCD image over a peer-to-peer network. But I have not knowingly consented to _any_ contract terms regarding _any_ such client, nor have I "distributed" any software bundle that might contain such a thing to anyone else in any way that I don't consider to be transfer of a copy, made under someone else's auspices, that I own under 17 USC 109. Now that I look at it, it seems blazingly obvious to me that the BitTorrent protocol, hierarchy, and license are designed as a package to push the liability for Napster-like usage patterns onto someone, _anyone_ other than the software authors. That's prima facie evidence that they fully expect to have to defend such a suit sooner or later -- and, judging from a friendly visit to someone near and dear to me from an IT staffer on whose operations console a BitTorrent client came up as "eDonkey / eMule", I'm guessing sooner. I don't lie down in front of oncoming trains, and I don't climb into bed with people who are daring the RIAA and MPAA to drop lawyerbombs on their bedrooms. Especially not in a jurisdiction with interesting indemnity provisions. If I bore any legal or fiduciary relationship to Debian (which I don't), I wouldn't really advise Debian to do so either. Cheers, - Michael (IANAL, TINLA)
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael Poole <[EMAIL PROTECTED]> wrote: > I have not meant to equate DFSG freeness with what can go into Debian, > but DFSG freeness is an important threshold issue. If my messages > misled on that point, I apologize. There are other factors to > consider, but this thread was originally about which changes were > necessary to make the BitTorrent Open Source License DFSG-free, and I > meant only to address that question. Fair enough. :-) But be aware that, if you are in the US and Burger King v. Rudzewicz is any guide, negotiating the terms with the licensor does more to bring you, and anyone on whose behalf you can be said to be negotiating, into the personal jurisdiction of their home state than a "choice of venue" clause ever could. It makes it a lot more likely that the loser-pays and waiver-of-jury-trial provisions will stick. (Looks like waiver-of-jury-trial was cut from the latest draft; but there's also that "can't construe against the drafter" garbage.) It guarantees that the Section 4c language about adding notice of effect on third-party IP rights will tangle with the Song-Beverly Act and Ninth Circuit law on vicarious liability and indemnification. You may not think that you are negotiating on legal issues, just "freeness" -- but no court will see it that way. Myself, I would no more redistribute a peer-to-peer client offered under a license like BitTorrent's than I would play Russian Roulette with a loaded Uzi. But YMMV. Cheers, - Michael (IANAL, TINLA)
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael Poole <[EMAIL PROTECTED]> wrote: > All rambling and ad hominem attacks aside, DFSG analysis is not at all > about risk; it is about determining whether or not the license imposes > non-free restrictions or requirements on licensees. Argument from > authority will not change that, particularly since it is unclear that > anyone has -- or will ever have -- relevant experience in law or > fiduciary duty you specified. One man's rambling is another man's grounding in real-world law. As for "ad hominem attacks", I did say that "not all debian-legal participants deserve to be tarred with that brush" -- so it's only an attack on _you_ if you think that "ideologues with brazen contempt for real-world law" fits _you_. (The "self-selected" and "no fiduciary relationship" bits are, I think, uncontroversial -- does anyone here feel like asserting that they are legally liable for the consequences of decisions influenced by d-l discussions?) I did have a couple of conspicuous individuals in mind, and you were not one of them; if you can't think of anyone around here whom the shoe fits a lot better than it fits you, my apologies. In any case, if you want to say that risk management is outside "DFSG analysis" (whatever that is), that's fine; but then you shouldn't be equating "DFSG-free" with "OK, ftpmasters, let it into the archive". A formalist attitude towards the DFSG, in which every objection to an upload has to map into one of its clauses, would probably even strike Justice Clarence Thomas as taking strict constructionism a little too far. Call citations to the actual law in one jurisdiction or another "argument from authority" if you like, but if that kind of authority isn't relevant to debian-legal then I hope that debian-legal isn't very relevant to Debian. Cheers, - Michael
Re: BitTorrent Open Source License (Proposed Changes)
On 8/1/05, Michael Poole <[EMAIL PROTECTED]> wrote: > The law that creates the warranty also allows its disclaimer; it > allows a developer to refuse the cost that the law incurs. In that > way, the disclaimer reverts the cost balance to its state in the > absense of the law. This is distinct from a choice-of-venue clause, > which creates a new cost that did not exist before the license > existed. The licensee's cost under choice-of-venue also did not exist > before the law describing personal jurisdiction. That is neither (AIUI, IANAL, TINLA) how implied warranty works nor how choice of venue works. Implied warranties such as "merchantability" and "fitness for a particular purpose", in common-law systems at least, are originally judicially created; in most states of the US they are now codified, along with standards of disclaimer, in the portion of commercial code modeled on UCC 2314-2317. But in some states (conspicuously California) there are additional statutes governing implied warranty elsewhere in the code, such as the Song-Beverly Consumer Warranty Act ( http://caselaw.lp.findlaw.com/cacodes/civ/1792-1795.7.html ). It is not true that some language in a form contract reliably "allows a developer to refuse the cost that the law incurs." The relevant statutes simply provide a minimum quality standard for attempts to disclaim warranty in a given contract of sale, and courts are perfectly capable of ruling that such language is too inconspicuous, or accompanied by language or conduct indicating that it is not binding on end users (IMHO clearly the case for the GPL), and hence allowing a breach-of-warranty suit to go forward. The Song-Beverly example is very interesting because it seems to be a favorite for class-action suits and comes with a duty of indemnity between manufacturer and seller. Not to be alarmist or anything, but this could easily bankrupt Debian. Suppose Rip-And-Burn, Inc. sells Debian-based in-car playback equipment for ripped DVDs. They obtain no patent licenses and don't do a good enough job on notice of warranty disclaimer. DTS sues them for patent infringement, obtains their customer list, and sends cease-and-desist letters to all of their customers. A customer in California can probably turn around and sue Rip-And-Burn for breach of implied warranty of merchantability under Song-Beverly, get a class certified, and claim that the box is now essentially valueless to all its owners because there is no less reason to fear Dolby (AC-3) and Thomson (MP3) than DTS. Either the customer or Rip-And-Burn can pull Debian into the suit, demanding that it indemnify as the "manufacturer" of the audio decoder libraries (especially libdts, which upstream has pulled, leaving Debian the most conspicuous supplier). Anybody care to run the numbers on Debian's probable liability to the class, including attorneys' fees and costs of litigation? Did I mention that I know of several companies in California who are building exactly such products (though I don't know whether any of them are using Debian or treating patents so cavalierly)? Anyway, as to personal jurisdiction -- this is a legal principle lost in the mists of time, adapted in modern times to fit the realities of commerce without personal contact. A "choice of venue" clause is not dispositive even in a negotiated contract -- see 28 U.S.C. 1404(a) and Stewart Organization v. Ricoh (1988) -- and a "choice of law" clause, together with a "long arm" statute, can contribute to the exercise of personal jurisdiction in the licensor's home state over a licensor who has never been there -- see Burger King v. Rudzewicz (1985). But there isn't that much for a licensee to fear here; mere language in a form contract may or may not oblige the offeree to _bring_ suit in the specified forum (compare Carnival Cruise v. Shute (1991) against Lauro Lines v. Chasser (1989)), but is unlikely to satisfy a "minimum contacts" standard and put her at risk of _being_ sued in a forum which would not otherwise have personal jurisdiction over her. If anything, it makes it harder for the offeror to sue _anywhere_ on a claim that is not pure tort, since the offeree may not have enough contact with the named forum to be sued there but may be protected elsewhere by the offeror's covenant not to sue outside the named forum. I haven't researched all the ins and outs of this, and in particular the combination of a forum selection clause in a copyright license with a patent infringement claim is potentially explosive -- but if you're distributing code licensed from the holder of a presumptively valid patent, and relying on jurisdictional niceties to protect you from accusations of infringing that patent, you're an idiot. You might think that contract language would only affect actions for breach of contract, but statutory and contractual causes of action are so tangled together nowadays that a "forum selection" clause can sometimes be used to block even securit
Re: BitTorrent Open Source License (Proposed Changes)
It amuses me to make the comparison between Mr. Kellogg's credentials and my own. I am no undergrad either; shedding that status took me four tries, two universities, and just over seven years. I graduated in Physics with no distinction to speak of, in December 1995, and it was rather an anticlimactic affair as I had effectively been in the astronomy Ph.D. program for a year and a half. I didn't last much longer in it, though -- I was a lousy excuse for a grad student in almost every respect, and though I respected several professors, the one that I admired (and the only one remotely likely to supervise my Ph.D. thesis) broke his neck in a car wreck the next summer and died not long thereafter. Besides, I got married that summer, and marriage focuses the mind wonderfully. I went back into industry (by way of the quick-and-easy sysadmin path) and, two jobs later, split to co-found a shoestring software startup with a buddy. (In the meantime, I had witnessed for the second time the beginnings of the collapse of a company due to a botched million-dollar deal involving contract terms that did not reflect the economic reality of the exchange.) The startup was a textbook example of "experience is what you get when you don't get what you thought you were gonna get"; I got a lot of experience in the next six years or so. I've been back in the corporate game for a couple of years now, racking up my lifetime score to date to a total of four Fortune 500 companies, two US government agencies, two universities (not counting mere dabbling), and numerous flavors of start-up and small business. Along the way, I have been involved in negotiating some rather complex business relationships with contracts and statements of work and pricing schedules attached. I have seen first-hand the operations of almost every class of software license there is, with trade secrets and patents and copyrights and trademarks and a dozen kinds of dollar incentives flying fast and thick. I have watched people use contract language to game pundits and public opinion and the stock markets and the tax system and international trade. Corporate legal staff and outside counsel have been known to come to me for a briefing on the facts of what legal risks I see myself and my colleagues taking, for editorial review of the factual portions of contracts, and in some cases to compare notes on the applicable law itself. Among my peers I am considered the person to ask to evaluate the primary literature on almost any topic from psychopharmacology to French Renaissance performance practice -- if you can get me to turn my attention to the problem long enough not to just shoot from the hip. I may not get the right answer but you'll find out things about the field that you never expected. What authority does that grant me? Absolutely none. But once I've put a thousand hours or so into thinking about a given topic, I generally have something to say, and some evidence to back it up. And it makes for an interesting life. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/31/05, Francesco Poli <[EMAIL PROTECTED]> wrote: > Maybe a license that fits Michael's needs, but definitely *not* a > DFSG-free one: unfortunately, at the moment, there are no CC licenses > that comply with the DFSG... I do not, at present, need a license at all; I am perfectly content with the legal consequences of saying "it's unpublished, but feel free to pass a few copies around privately". If there's one thing I'm very _un_likely to do, it's use a license drafted by some random people whose agenda I don't know to say something that can be said in a dozen words. Cheers, - Michael
Re: LGPL module linked with a GPL lib
I wrote: > The contributory / direct infringement difference is kind of > interesting from a tactical point of view ... followed by some discussion about the Micro Star opinion that was more inarticulate than usual. The point I was trying to make, in sentences of 25 words or less: The important part of the Micro Star opinion is the exposition of why MAP files are morally equivalent to unauthorized sequels to Duke Nukem. The text of the opinion is complicated by the need to distinguish it on the facts from Galoob. The author in Galoob, in turn, felt the need to distinguish it on the facts from the Seventh Circuit's decision in Midway v. Artic. The result is a thicket of ill-conceived case law harping on technical criteria for whether or not a "derivative work" has been created. IMHO, "was a derivative work created?" is the wrong question. The right question is, "has the alleged infringer used the original's creative expression in a way that Congress intended to reserve to the copyright holder?" Piecewise "recycling" of existing works, whether by the original author or by enterprising aftermarket tweakers, is becoming more and more common. So perhaps courts should ask, "does this boost usability of the existing work without really interfering with the potential for sequels? Or does it just rip the original off as a substitute for going to the trouble of writing new stuff?" >From this perspective, a speeded-up Galaxian (Midway) is kind of borderline, like a double-time punk cover of a 60's chestnut. Helping Nintendo players cheat (Galoob) has no real effect on the "creative expression", but publishing new game levels (Micro Star) does. Artificial criteria about whether an altered display is sufficiently "fixed", or whether the alleged infringement is direct or contributory, just get in the way. Maybe that's an outline of another law journal article. :-) Cheers, - Michael (IANAL, TINLA)
Re: BitTorrent Open Source License (Proposed Changes)
On 7/30/05, Sean Kellogg <[EMAIL PROTECTED]> wrote: [snip] > ... choice-of-venue clauses just keep people from playing > the venue shopping game. Is there actually anywhere in the world that a choice-of-venue clause in a contract of adhesion is worth the paper it isn't written on? I wouldn't think much of a court that let a shrink-wrap license dictate "forum non conveniens" without proper regard for the equities, unless there is real evidence that the offeree intended to be bound by it. > But I'm going to take offense to your claim in a wholey other matter, if you > don't mind, and say what right does Debian-Legal have in deciding my legal > decisions as a user? The DFSG set out the kind of software that Debian is to > distribute, it is not a tool for D-L to make my legal decisions. If I want > to have a choice-of-venue agreement with a software distributor, who is > Debian to stand in my way? Is Debian my mommy now, making sure I don't agree > to something I shouldn't? Oddly enough, I'm going to stand up for Andrew on this one. Where Debian has some sway over upstream's terms of offer, it makes sense to discourage both DFSG-dubious and unwise-whether-free-or-not drafting choices. While the litmus tests that seem to be current among debian-legal denizens are not necessarily the tests that I would apply, I think they generally represent a sincere effort to act as good stewards of the software commons. I think that all debian-legal readers should feel free to raise their concerns about the burdens that a given license might place on one party or another, and I trust the ftpmasters and maintainers to make reasonable decisions once the dust settles. > And the pet-the-cat-license is a really poor counter argument. Like I said > before, the suit is going to happen SOMEWHERE. Stating that "somewhere" in > the license reduces legal uncertainty... which is a good thing. Maybe, if > law suits could be started in the ether such a requirement would be > onerous... but it can hardly be said to be onerous in a world where things > must happen in physical space. The suit has to be somewhere... might as > well be in Santa Cruz. Now that would be convenient for me. :-) But I think the original said Santa Clara County, which is over the hill. Personally, I never write choice of venue into contracts (yes, though I am not a lawyer I have drafted contracts involving fairly large amounts of money), only choice of law (State of California, which I trust courts elsewhere in the US to be competent to interpret). That's specific enough for both sides to understand the ground rules, without tempting either to exploit localized anomalies in case law. > What the fuck?! I'm sorry, but this is the line that really ticked me off. > Where the hell do you get off calling the U.S. Civ Pro rules "extremely > right-wing"? I mean... honestly? Relax. Laugh. Relish the thought that you understand just how comical it is for an Australian to refer to the Ninth Circuit and the People's Republic of the Bay Area as "extremely right-wing". > Huh? Debian has determined that clauses of the GPL are non-free? That's > outrageous. Actually... you're entire e-mail (including the other one) is > just really infuriating. Especially the line about complex licenses being > done by a lawyer. What exactly do you think I am? I'm pretty sure my legal > training gives me the expertice to comment on license language... I sure > paid an awful lot of money if it doesn't at least get me that. I'll admit, I > haven't taken the bar... but since the bar doesn't cover Copyrights, I'm > pretty sure I have all the formal training any other lawyer has. Andrew's got reasonable points here. AIUI the GPL is basically the outer limit of the DFSG in one direction (the TeX license being the outer limit in the other), and the GPL's requirements would indeed by a significant inconvenience in this modern age without the combination of 3a and the "equivalent access to copy" paragraph. And while I think we are all qualified to comment, and I don't always follow my lawyer's advice on questions of contract language, I do not change contract terms lightly once they have received a trusted attorney's scrutiny and approval. > Seriously man, where do you get off? Oh, the usual place, I expect. People in the Southern Hemisphere aren't _that_ different from us. :-) Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/30/05, Ken Arromdee <[EMAIL PROTECTED]> wrote: > By this reasoning, if linking is normally a breach of rights, I could give you > some BSD licensed software and do exactly the same thing. I am estopped from > suing you for linking with my BSD software, but I can still prevent other > people from helping you link with it, since the linking is still infringement > despte the license telling you you can do it. But the GPL doesn't tell you in so many words that end users have a "license to link". As I wrote, to get to end-user safety without really looking at the interactions between linking and the GPL language, you need to combine a statutory provision that narrows the rights reserved to copyright holders (17 USC 117) with a negative in the GPL (suggesting that, if things that happen during end use don't qualify as "modification" in a copyright sense, then they're entirely outside the GPL terms). In this view, the deliberate excision of "right to use" in the GPL v2 (apparently for the sake of bolstering the "copyright-based license" fiction) leaves end users not with a _license_ -- that's a term in a contract -- but with an _estoppel_ argument against attempts to sue them for doing things that the copyright holder implied they were permitted to do incident to normal use. (End users could also argue, entirely on statutory grounds and without reference to the GPL text at all, that they became the "owner of a copy" under the Section 109 standard when they obtained it in good faith from a presumptively licensed distributor, and proceed directly to their Section 117 rights without need for estoppel. But this cannot of course be used circularly to protect the distributor.) The BSD and MIT X11 "licenses", as I read them, are pure creatures of estoppel and not copyright licenses (in the sense of binding contract terms) at all. Their unilateral grant is so broad as to protect both end use and distribution; but as no one has accepted any significant obligation of return performance, only a "reliance to one's own detriment" argument supports a claim that the copyright holder can't abrogate that grant at any moment. > If I give you some software and say that you can link it in private, that's > *permission*. The GPL doesn't need to override the meaning of "infringement", > because it already has a meaning, and that meaning already says that if you > have permission to do it, it isn't infringement. If it isn't infringement, > helping you do it can't be contributory infingement. As I wrote, a copyright infringement claim could only be brought home against the distributor "_if_ it were correct that the act of linking breached rights reserved to the copyright holder." Suppose the end user's actions are in principle infringing but the copyright holder's statements have led to a sort of half-assed estoppel-based substitute for a license. Then there is no guarantee that someone who _is_ unambiguously engaging in copying and modification (and therefore needs the license offered in the GPL) can rely on the end users' de facto immunity from suit as a defense against claims that end users are being encouraged to bend the rules. That wouldn't really be a copyright infringement claim, though; it would be a claim of breach of the duty to deal in good faith implicit in any contractual relationship, argued as grounds either for recovery of damages under the contract or for rescission of the contract so that a copyright infringement claim can proceed. > >Compare, for instance, Micro Star v. FormGen. You could argue that > >the "unauthorized sequel" didn't really exist until an end user loaded > >the MAP file into Duke Nukem, and Micro Star neither authored the MAP > >files nor distributed them together with Duke Nukem. > > Oh, come on. FormGen claimed that the MAP files themselves were > infringements, > because they used the game setting. It didn't matter that the user linked > them, because they were unauthorized sequels all by themselves. This was one > of the distinctions the court made between it and the Game Genie case, because > in their view the Game Genie only lets consumers create derivatives, but the > MAP files are derivatives. The Game Genie case did _not_ conclude that consumers were creating derivatives; as the Micro Star opinion comments, the discussion of the "fair use" defense in Galoob was dicta based on a hypothetical. As for the contention that MAP files were "unauthorized sequels all by themselves", I do think it's a bit subtler than that, though I can understand your reading the opinion that way. Observe Footnote 5: "We note that the N/I MAP files can only be used with D/N-3D. If another game could use the MAP files to tell the story of a mousy fellow who travels through a beige maze, killing vicious saltshakers with paperclips, then the MAP files would not incorporate the protected expression of D/N-3D because they would not be telling a D/N-3D story." This amounts to a declaratio
Re: LGPL module linked with a GPL lib
On 7/30/05, Francesco Poli <[EMAIL PROTECTED]> wrote: > Well, let's say "Almost All Rights Reserved". > Anyway, it's still really far away from a DFSG-free document: that's > basically what I meant... Oddly enough, there is some useful knowledge out there that is not currently available in a DFSG-free document. :-) If I get to the point of being confident that it is a wise thing to do, I may "publish" some of this analysis in a more convenient form than you already have it (almost all of it is in one message or another in the debian-legal archives), and that "publication" may come with somewhat more liberal explicit terms about piecewise re-use (few, if any, of my d-l posts come with any more permissions than may be intrinsic to their having been posted to a publicly archived list). I doubt I shall ever attach a DFSG-free license to this work in monograph form; it's not a computer program or the documentation for a computer program, and it's not really something people should be making "bug fixes" to and re-publishing without a quite strong presumption that they take all of the risk for having changed its meaning or made it look as if the author offered it as authoritative. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/30/05, Raul Miller <[EMAIL PROTECTED]> wrote: > I count four issues the judge considered, with a bit of detail on each > of those issues. I didn't say six "issues". I said "six reasons why it would be inappropriate to grant a preliminary injunction for breach of the GPL terms, any one of which would have been sufficient." Let's walk through them together. > 1) Likelihood of success: Here, the judge discussed the dynamic > linking issue, said that MySQL would probably win, but that the issue > was in dispute. That's not what the opinion said. The two sentences are: "Affidavits submitted by the parties' experts raise a factual dispute concerning whether the Gemini program is a derivative or an independent and separate work under GPL para. 2. After hearing, MySQL seems to have the better argument here, but the matter is one of fair dispute." And as such not suitable for judgment as a matter of law. Note that the facts of the case involved: - an essentially _undocumented_ _internal_ interface to which no other outside party had AFAIK ever implemented; - deceit on Progress's part about whether they included the full source of mysqld as distributed on their release CDs (they didn't), and deliberate use of _static_ linking and failure to provide even a binary version of the Gemini table type as .o or .a, leaving customers unable to build a bug-fixed mysqld without losing the table type; - large cash payments from Progress to TCX DataKonsult (predecessor to MySQL AB) which were reported at the time as "financing" TCX's move to the GPL -- and hence extensive negotiations between the parties about what conduct they both understood the GPL to demand of Progress. Despite all of which, the matter remained one of "fair dispute" that could not have been resolved at the summary judgment stage even if MySQL's case had been otherwise flawless. So that's blocker #1. #2 was that, even if the evidence had originally been adequate to support the "likelihood of success on the merits" prong, the judge was not "persuaded based on this record that the release of the Gemini source code in July 2001 didn't cure the breach." So much for the "automatic termination" clause. > 2) Potential for irreparable harm: [This is what i was talking about.] > The judge listed a number of particulars about why irreparable harm > was not likely. Blocker #3: "In any event, even if MySQL has shown a likelihood of success on these points, it has not demonstrated that it will suffer any irreparable harm during the pendency of the suit ..." The judge is not applying a copyright law standard here, which would have given MySQL an automatic presumption of irreparable harm that it would be up to Progress to rebut. As well she shouldn't have; as there were no sufficient grounds for rescinding the contract, no claim of copyright infringement could succeed. And MySQL was unable to make a showing on the facts that they would suffer _any_ harm during the pendency of the suit, let alone harm that could not be repaired through monetary damages after the fact. > Of particular importance were sworn statements made by Progress > that the source code had been released and that the conflicting > license requirements were being withdrawn. (This is what I was > talking about, above -- the issue was basically resolved at the > time the judge wrote that order.) "... particularly in light of the sworn statement that all source code for Gemini has been disclosed and the stipulation, given by Progress during the hearing, that the end use license for commercial users will be withdrawn." That would be blockers #4 and #5; either of these voluntary stipulations (nothing to do with a consent decree) would be enough to void the "potential for irreparable harm" prong of the preliminary injunction test, since proving harm would require both a means by which Progress could extract customer revenues that "should" have gone to MySQL (difficult if MySQL, along with the rest of the world, also has Progress's source code) and an intention of continuing to do so (difficult if Progress abandons the practice of charging for end-user licenses). > Perhaps, when you say there were six reasons, you've broken > this issue down into several pieces? > > 3) balancing of relevant equities: This favored Progress as > suspending distribution of Gemini would have destroyed them. Blocker #6: "Finally, because the product line using MySQL is a significant portion of NuSphere's business, Progress has demonstrated that the balance of harms tips in its favor regarding the use of the MySQL program under the GPL." This is the third prong of the preliminary injunction test, and MySQL failed this one too. Even if they had demonstrated a likelihood of success on the merits and a probability of "irreparable" harm if Progress were not immediately enjoined, Progress's position was such that an injunction would do them greater irreparable harm -- and in a contract (not tort) a
Re: LGPL module linked with a GPL lib
On 7/29/05, Francesco Poli <[EMAIL PROTECTED]> wrote: > In other words, "All Rights Reserved"... :-( I did say that I would be happy to give you advance permission to circulate a reasonable number of copies privately, which would leave me with no recourse against you unless you set out to misappropriate or grossly misrepresent my work or to defeat its "first publication". That's rather different from "all rights reserved", and it's the most open I know how to be without seriously compromising its status as an unpublished work still in draft. > P.S.: please do not reply to me directly, while Cc:ing the list, as I > didn't ask you to do so... since I'm a debian-legal subscriber, I'd > rather not receive messages twice! thanks I went back and checked the "code of conduct" and you are of course right that I am in error. It's too bad that the code of conduct plus the remailer configuration are inverted relative to the way that MUAs work. Adding a Followup-To: d-l is supposed to be a no-op by the code of conduct, and would make almost all MUAs do the right thing; but the remailer doesn't do it automatically. And even if I check the headers manually I'm not supposed to assume that a Reply-To: (real mail address) was intentional. So I'm supposed to strip the sender from the reply list no matter what Followup-To or Reply-To says, unless "I'm not subscribed, please copy me" is in the body of the message. I guess I'll do that henceforth, but it really feels broken. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/29/05, Ken Arromdee <[EMAIL PROTECTED]> wrote: > While that's true, the right of users to link the software in private isn't > a personal-use safe harbor--it's explicitly allowed by the GPL. > > If the GPL lets the user do it, it isn't infringement at all. You can't > have contributory infringement if there's no infringement. The GPL is not a new copyright statute with the power to override the meaning of infringement, nor do its drafting oddities render it null. It does indeed declare (in v2) that "activities other than copying, distribution and modification are not covered by this License"; and, taking that statement together with the extent of modification and copying permitted by 17 USC 117 (and its parallels elsewhere), you may perhaps say that the GPL "explicitly allows" the end user to "link the software in private". But that is merely a basis for arguing that the copyright holder is estopped from suing end users who are simply using what they have received in good faith. That does not mean that a distributor could not be successfully sued for copyright infringement _if_ it were correct that the act of linking breached rights reserved to the copyright holder. It makes little difference whether you call this "direct" or "contributory" infringement; there is no reason to think that the legal system in any Berne Convention country would find it difficult to bring the consequences home to the party that profits (or would be profiting if it were charging for distribution). Where there is a valid theory under which the copyright holder is suffering a loss not of her own making, any legal system that recognizes "tort" or a similar concept may be expected to provide a forum for her to demonstrate who is responsible for wronging her. Compare, for instance, Micro Star v. FormGen. You could argue that the "unauthorized sequel" didn't really exist until an end user loaded the MAP file into Duke Nukem, and Micro Star neither authored the MAP files nor distributed them together with Duke Nukem. FormGen had effectively estopped itself, in its license, from suing either the MAP file authors (who were giving away their work in compliance with the terms of the license) or the end users. Yet FormGen successfully sued Micro Star for copyright infringement, essentially because 1) they were distributing files which amounted to infringing works of fiction and had no substantial non-infringing uses, and 2) they could not claim the non-commercial exemption offered in the license to the MAP file authors themselves. Where the GPL situation differs, of course, is that linking one library to another does not create an "unauthorized sequel" of either; nor does any other way of using one program's functionality from another without a deliberate intermingling of their creative expression by a human agency. There may well be ways of writing an offer of contract such that the licensee gives up rights with respect to a published work that he would otherwise have under copyright law, in exchange for other rights that are within the copyright holder's power to grant or reserve. But the GPL drafters are in a very poor position to make such an argument. The GPL does not succeed in blocking the creation, distribution, and use of interoperating programs under other licenses. Not, perhaps, because the drafters didn't intend to do so, and certainly not because the GPL is some sort of magical creature of copyright law (it's not). Instead, its interpretation is constrained by its drafters' insistence on claiming that it is designed to give freedoms and take none away, and by their dogged determination to use copyright-law language (however inapposite) to persuade the naive reader that it is free of the contract law's jurisdictional variations and rules of construction. Given the GPL's preamble and its drafters' conduct, I think you would have to go pretty far afield to find a legal system in which a GPL licensor would be permitted to deny a licensee liberties that would be permitted to another with no contractual relationship to the author. And in US law as I understand it, those liberties include the creation, distribution, and use of software that interoperates via published external interfaces, whether or not it is in the economic (or ideological) interests of the original author to permit this. The only exceptions of which I am aware involve quite different causes of action: - misappropriation of characters and mise en scene (Micro Star v. FormGen) - fraud on the copyright office and literal infringement in excess of strict interoperability requirements (Atari v. Nintendo) - misappropriation of trade secrets by former employees (Cadence v. Avant!) - breach of a duly executed contract, and failure of the 17 USC 117 exemption because the licensee did not qualify as the "owner of a copy" (DSC v. Pulse) - breach of conditions of license in a negotiated contract, and thereafter trademark dilution (Sun v. Mic
Re: LGPL module linked with a GPL lib
On 7/28/05, Francesco Poli <[EMAIL PROTECTED]> wrote: > What do you mean "freely available"? > Should I request a copy, which license would you send it under? None whatsoever. :-) Just like sending you a paper copy in the mail, with no obligation of confidentiality as such; the copy is yours, feel free to read it, use ideas and facts from it, quote from it under "fair use" standards, or do anything else you're permitted to by statute and convention. Feel free also to use your statutory right to pass it to another person (not retaining a copy), or request permission (which I will actually be happy to give you in advance) to make a few copies for friends, business associates, whatever. But don't represent it as your own work, don't "publish" it in a way that would obstruct its publication in a journal (more or less, a way that would have affected its copyright status under pre-1976 law), and don't claim that I authorized you to represent me for any commercial purpose or to quote me as an authority in any legal sense. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/28/05, Raul Miller <[EMAIL PROTECTED]> wrote: > For example, take Progress v. MySql -- here, the "stop > distribution" penalty was not used in part because Progress > didn't have anything else -- it would have been destroyed > by this penalty. And, Progress had agreed in court to release > their software under other terms. This is purely a practical > issue (as you'd expect from a preliminary injunction). You still don't seem to understand what happened in that case. The judge cited six reasons why it would be inappropriate to grant a preliminary injunction for breach of the GPL terms, any one of which would have been sufficient. And it was implicit in the structure of the decision that she rejected both the notion that the GPL is a creature of copyright law and the plea in Mr. Moglen's affidavit that the "automatic termination" clause was central to its "enforcement". Had she taken either of these propositions even a little bit seriously, she would (as she well knows) have been obliged to analyze the request for preliminary injunction according to a completely different standard. > What's amazing are your repeated claims that the FSF > doesn't know what it's talking about, legally speaking. Oh, they may well know the truth (as I understand it); but if so, they do not choose to advertise their knowledge. Alternately, if they have a foundation for their claims that my amateur archaeology has been unable to unearth, they seem to have no desire to expose it to public scrutiny. Why should they, when widespread belief in the accuracy of their interpretation gets the job done anyway? Cheers, - Michael (IANAL, TINLA)
Re: LGPL module linked with a GPL lib
On 7/28/05, Ken Arromdee <[EMAIL PROTECTED]> wrote: > On Thu, 28 Jul 2005, Andrew Suffield wrote: > > You Are Wrong. Under US law, this is Contributory Infringement, which > > carries a full array of jail terms. SCOTUS just upheld it against > > Grokster a few weeks ago. Providing an automated system for users to > > perform infringing acts, with the sole intent of aiding them in > > performing those acts, is the same as doing them yourself. > > But that doesn't apply in the case of automatic systems for users to do the > link. The GPL allows users to do what they want privately, so the users > aren't performing infringing acts themselves. While Andrew's parallel to Grokster is IMHO inapposite, he is correct that a theory of contributory infringement (also available in other countries under the name "vicarious liability") allows recovery from a party whose role is to facilitate and encourage infringement by others. The availability of some sort of personal-use "safe harbor" (as in European patent law, for instance; see thread on XMMS and MP3) does not necessarily protect a commercial entity whose product or service does not have (or is not actually marketed for the sake of) substantial non-infringing uses. Cheers, - Michael (IANAL, TINLA)
Re: LGPL module linked with a GPL lib
On 7/28/05, Raul Miller <[EMAIL PROTECTED]> wrote: > I don't think that the point is that people would be going to jail for > violating the GPL. "Violating the GPL" doesn't mean anything. The GPL is not a statute. It's just an offer of contract. The only way to "enforce" it is for a party with standing for a copyright infringement action (i. e., an _author_ -- not just any old contributor of some fragment) to bring suit for copyright infringement with additional claims of breach of contract, to be pressed if the alleged infringer claims license under the GPL for his conduct. The penalties for copyright infringement are laid out in 17 USC Chapter 5; the penalties for breach of contract may include some sort of equitable relief and/or permission to abrogate the contract and proceed to claims of copyright infringement. > GPL violators appear to face several potential penalties: > > (*) Works they hold copyright on might be released under the terms of the GPL > when they thought they could get away with not doing that. This is extraordinarily unlikely except as part of a consent decree, agreed on by the parties and ratified by the court as an alternative to proceeding to judgment. The only cases I have seen (but IANAL and this is not an area I have researched closely) that came anywhere near such an order of specific performance prescribed such performance as an alternative to withdrawing a work from circulation altogether. See Sun v. Microsoft, on remand from the Ninth Circuit decision. > (*) They might be forced to pay someone else to release their work under GPL > terms. This is even more unlikely; the court has no power to compel that "someone else" to make such an offer. Of course, if the accused thinks that the simplest way to end the dispute is to negotiate such a deal with the third party and offer it as part of a consent decree, that's another story. > (*) They might be forced to stop distribution of some work where they don't > have the proper rights available to them. In other words, injunctive relief -- often granted temporarily pending trial at the preliminary hearing stage, and if granted often followed by out-of-court settlement. As I have explained ad nauseam, I think it very improbable (IANAL, TINLA) that preliminary injunctive relief could be obtained in a linking scenario involving the GPL even under the most egregious of fact patterns; compare Progress Software v. MySQL. > Obviously there would be cases where one or more of these would not apply, > but if none of these apply that's probably because they're not violating the > terms of the GPL. AIUI most copyright infringement suits end with monetary damages, sometimes with attorneys' fees and costs attached, sometimes with impoundment and an added injunction against continued infringement (which makes it quite easy to come back for more penalties if the infringer doesn't cease). But IMHO a competently defended "GPL violation" suit, if its facts reflect reasonable disagreement about the interpretation of a contract of adhesion, is unlikely to result in any penalty other than the stipulation of future conduct consistent with the contract terms as construed by the court. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/27/05, Jeff Licquia <[EMAIL PROTECTED]> wrote: > Excuse me for asking, but why is this monograph not freely available? > Surely, as a non-lawyer, you have no hope of profiting from it, and > having a succint, linkable statement of your arguments would do wonders > for preventing such go-arounds as this one, and might even persuade > laymen like me. It's freely available by request, but not "published", for several reasons. One, I don't want to risk detracting significantly from anyone's reputation in a way that isn't very firmly grounded in fact, and so I prefer to gather as much criticism as I can privately before presenting any conclusions in any form more official-looking than a post to a random discussion list (where counter-arguments by other people are only a click away). Two, a couple of lawyers and law students of my acquaintance have suggested (rather to my surprise) that it might be law journal material, and academic journals like to be the first actual publisher of a given paper. (There's no profit for me in that; if law journals operate anything like scientific journals, they'd probably charge me for the privilege; but it's kind of cool to have a publication in a peer-reviewed journal in any field, and if I ever want to go to law school it can't hurt.) Three, the paper (in LyX or PDF form) is inappropriately large for distribution using a mailing list archive's resources, and I haven't gotten around to resurrecting any of the random places where I have hosted content in the past. :-) > "Use" is not my concern; distribution is. Certainly, a user may combine > Net-SNMP and OpenSSL in any way they want; even the GPL allows that. > But (again, statically, so as to be entirely clear) when somebody puts > Net-SNMP and OpenSSL together (or, to be more precise, OpenSSL and the > Perl extension libraries) into a single binary and distributes the > result, does that person have any copyright obligations to the Perl, > Net-SNMP, and/or OpenSSL authors? As far as I can tell (IANAL, TINLA), they have the same obligations that they would have if they shipped printouts of the three projects' source code in the same box. Copyright is about creative expression -- literal, human-readable text, images, and so forth, plus a limited extension towards the non-literal that is historically applied to translations to another human language, adaptations to another dramatic form, sequels using the same characters and mise en scene, etc. It's not about interlocking functionality or about the idea content of a work. A copyright license is of course a creature of contract law, despite the nonsense about "copyright-based licenses" that the FSF would have you believe. The GPL, in particular, is a perfectly valid offer of bilateral contract, and as such can condition the grant of license on whatever return performance is allowable in any other contract of adhesion under the law in a given jurisdiction (in the US, mostly state-level civil and commercial code). But its strident claims to divide the permitted from the forbidden exclusively using copyright criteria do have some legal effect -- the offeree is on solid ground when arguing that copyright law as judicially interpreted trumps erroneous paraphrases in the GPL text and (IMHO) misrepresentations on the FSF's web site. > Furthermore, it's my sense that copyright holders have all kinds of > discretionary power in restricting distribution of their works by > others. In what way is this power restricted when it comes to the > dynamic linking question? That discretionary power is channeled entirely through the terms of a license agreement (as modified by statutory overrides such as the 17 USC 203 termination provisions), and power over "distribution" is heavily curtailed by the doctrine of first sale. That's not of any great relevance to the GPL -- there are much stronger arguments against the hypothetical dynamic-linking ban based on the GPL text itself -- but it's useful background material. > Of course, the FSF has had a relatively successful run at spreading > their meme throughout the legal community. The point was not that they > are "pure" in some vague moral sense, but that they have > well-established reputations and a long history of getting various > portions of the legal community to see things their way. Thus, looking > at things from an "authority" perspective, you can see the force behind > their arguments. The legal community has been pretty resistant to this meme, as far as I can tell. Programmers and journalists are another story. There's a delicious romantic storyline about Robin Stallman Hood and Friar Eben Tuck, and they have the advantage of what I think could fairly be called a monomaniacal dedication to spreading that storyline over the past 15 years or so. Although I have no personal knowledge on the financial side, it certainly looks to me like it has made them both rich men. Little snippets in the public record -- Jim B
Re: LGPL module linked with a GPL lib
On 7/27/05, Jeff Licquia <[EMAIL PROTECTED]> wrote: > Does such compilation in itself give Debian any rights on its own, or is > the compilation seen as non-copyrightable? The collective work (special case of compilation) that is a Debian CD is copyrightable. The copyright covers the creative expression that goes into "selecting and arranging" its contents. > I would agree that hello.c is unencumbered with regards to its > copyright. But the hello executable created through compilation > (statically, to be clear) certainly has some kind of copyright > obligation with regard to the libraries contained within it, doesn't it? > Perhaps "derived work" is not the right term, but I find it thoroughly > incredible that the copyright of the library is irrelevant with regards > to the executable. The statically compiled executable contains a copy of (non-trivial parts of) the C library, and of course copying and distributing those bits requires license from the copyright holder. > And, if so, then by the terms of the GPL, the whole of the executable > must be itself covered by the terms of the GPL if any component part is. Nope. The GPL is written with passim references to "works based on the Program", which is defined in Section 0 in terms of the copyright law meaning of "derivative work". I'm not going to rehash the whole detailed parsing of the GPL language here (see the d-l archives or ask for a copy of my write-up), but to the extent that the drafters intended to forbid the (uncopyrightable) combination of GPL library X and library-using program Y, they failed to do so. (IANAL, TINLA.) > Well, yes, in the case of glibc. In fact, one of the possible solutions > to the KDE/Qt problem involved reimplementing Qt under the GPL, at which > point the proprietary Qt would not be a prerequisite for KDE. The existence of an alternate implementation of a given published library interface certainly disposes of any question of whether a program is a "derivative work" of either implementation; but this is by no means necessary for the program to be non-infringing. > So does this mean that libraries cannot impose restrictions on the > programs that use them? I think far more groups than the free software > community rely on this being the case; see the license agreement on any > Microsoft SDK for an example. Whether or not that agreement purports to bind a developer in ways that copyright law does not, there are limits to what terms a court will permit in a contract of adhesion. The license terms might create a cause of action for breach of contract, but that's a very different animal from copyright infringement. If you know of a case more applicable than Lexmark v. Static Control and Specht v. Netscape, I'd be very interested to hear about it. > It would have been good for someone to have made those arguments at the > time. Why they did not do so is a mystery. (Of course, those arguments > could have been made, and missed by me, in which case cites for those > arguments would be worthwhile. Obviously, the cites were missed by far > more people than me.) How many participants in the KDE/Qt brouhaha actually cited relevant case law? In any case, there's a perfectly good argument that for Debian to piss off the FSF is not a good idea whether or not they have a legal leg to stand on. I personally would be ashamed to lend my good name to their conduct in recent years, but YMMV. Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/27/05, Jeff Licquia <[EMAIL PROTECTED]> wrote: > On Wed, 2005-07-27 at 10:05 -0300, Humberto Massa Guimarães wrote: > > First of all, Debian GNU/Linux is *NOT* a derivative work of > > OpenSSL, GStreamer, nor any of its plugins. A derivative work has a > > definition in the statute (in the US case, 17USC). > > Hmm. I suppose this is part and parcel of the move in the USA to > copyright "compilations" or "databases"? I suppose I had never thought > of it that way. No, the "derivative work" category (which had a parallel, but no special name or significance, in prior copyright statutes) was created in the 1976 Copyright Act, essentially for the sake of the exceptions to license termination in Sections 203 and 304. It has no special significance under law other than in cases involving these sections, and using it in the text of a license is eccentric at best. Prior US statute and jurisprudence treated translations, adaptations, and so forth as just a subset of works that were both copyrightable as originals and infringing on the older work in the absence of license. "Compilations" and "databases" have no relation to derivative works in statute or in history. For a history of the rules about copyright in "compilations" whose component parts are uncopyrightable facts were established, see the discussion in Feist v. Rural Telephone ( http://www.law.cornell.edu/copyright/cases/499_US_340.htm ); note that "compilations" were copyrightable under both the 1909 and 1976 Acts, and that decisions like Harper & Row (1985) and Feist (1991) _narrowed_ the judicial interpretation about what made them copyrightable, discarding "sweat of the brow" and focusing on what originality they may contain. I'm not aware of any contemporary "move to copyright" such things, i. e., to restore the "sweat of the brow" doctrine; there is some effort to harmonize the treatment of compilations among Berne Convention nations and to codify the Feist standard of "thin" protection for factual compilations. In short, the GPL drafters could also have attempted to encumber _collective_ works containing a GPL work, which would affect Debian CDs (works of authorship by virtue of the creative expression in the selection and arrangement of their components), but the actual language of the GPL doesn't, when appropriate standards of contract construction are applied. The GPL probably couldn't legally block the _use_ of a GPL component from components under different licenses no matter how it was written, given precedents such as Lotus v. Borland and Lexmark v. Static Control. The copyright monopoly is granted on creative expression, not on function, and is not meant to be leveraged to block competitive interoperability. The League for Programming Freedom's amicus brief in Lotus v. Borland at http://web.archive.org/web/lpf.ai.mit.edu/Copyright/lpf-sc-amicus.html is moderately eloquent on the topic. Maybe you can find a way for Eben Moglen's own words not to damn his position on GPL "violation" through linking, but I can't. > > Yes. There is no derivative work status on the program that uses a > > library. I and M.K.Edwards, in the last 3 months or so, have brought > > a lot of arguments and case law to this extent to d-l, and my own > > and humble conclusion is that: especially in the case of dynamic > > linking (and more so in the case of dlopen()ing), the distribution > > by debian of both a program A and a linking-to-A B.so is subject > > only to the *separate* compliance to the terms of both A and B.so, > > independently of any terms applied only to derivative works of A or > > of B.so. > > Mr. Edwards, elsewhere, refers to the GFingerPoken thread, which I had > followed. There may be other threads I did not follow, and I will look > for them. The message to which I pointed you has a link back into the main fray (threads with titles like "Urgently need GPL compatible libsnmp5-dev replacement", "GPL and linking", and "What makes software copyrightable anyway?"). I've put together a 50-some page monograph that contains 'most everything I know about the subject (and about the process of construing the GPL, apart from the warranty disclaimer, about which I've learned more since); copies available for private circulation upon request. > I confess to not seeing how the manner of linking makes a difference > from a copyright point of view. Static linking creates a derived work, > in that the resulting binary contains the library, much as how a motion > picture film contains its soundtrack. To me, splitting the soundtrack > off a movie, and creating a machine to recombine them afterwards, does > not cease to make the movie an infringement on the soundtrack's > copyright, which is equivalent to the dynamic linking process. Is such > a scheme really effective from a legal standpoint in avoiding copyright > liability? The manner of linking doesn't make a difference in principle, and the statically linked case is no more a derived wor
Re: LGPL module linked with a GPL lib
I wrote: > ... only those few d-l participants with actual legal credentials seem to > agree with me ... Er, that overreaches a bit in both directions; sorry. I'm more strident on the topic than the people with credentials are, and there are certainly other d-l regulars who question the FSF FAQ's stance on the matter. I just meant to say that I seem to be in a minority but it's a minority in which I'm comfortable. :-) Cheers, - Michael
Re: LGPL module linked with a GPL lib
On 7/26/05, Michael Poole <[EMAIL PROTECTED]> wrote: [snip] > A compilation or collective work under US law is not necessarily a > derivative work of any of its components. The GPL's use of > "derivative" and "derived" is fuzzy in this sense, which is one reason > the terms from copyright law are used more often than the GPL's terms. Almost -- a compilation or collective work is almost _never_ a derivative work of any of its components. The GPL drafter just plain got it wrong in Section 0, and the legal definition in 17 USC 101 (and its parallels in other Berne Convention countries) overrides the GPL's incorrect paraphrase. Extensively discussed on debian-legal in the last few months (disclaimer: only those few d-l participants with actual legal credentials seem to agree with me); you might start at http://lists.debian.org/debian-legal/2005/07/msg00336.html . Cheers, - Michael (IANAL, TINLA)
Re: OT: How I learned to stop worrying and love software patents
Summary: There is a real concern with the integrity of the patent process underlying the Federal Circuit's refusal to condone summary patent invalidation without an adequate scrutiny for triable questions of fact. On 7/26/05, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Hmm. Sticking to patents for the time being, let's note that no court > bothered to actually test whether the patent or copyright system falls > within the Constitutional power to "promote the Progress of Science and > the Useful Arts". Given this, Diamond v. Chakrabarty is wrongly > decided; it rules that the Congressional intent to allow "anything under > the sun that is made by man" to be patentable subject matter is correct, > and furthermore that it is the principle by which questions of > patentable subject matter should be interpreted. But that's a issue of > major legal philosophy. Both the majority and the dissent in Chakrabarty agreed that the only question before the court was a narrow one of statutory interpretation. Even so, Chief Justice Burger addressed the constitutional concern: It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is "the province and duty of the judicial department to say what the law is." Marbury v. Madison, 1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in 101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject-matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting "the Progress of Science and the useful Arts" with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms. One can reasonably argue whether Congress excluded bacteria from the Plant Patent Act because they were satisfied with existing administrative and judicial interpretations such as In re Arzberger (the majority's guess), or because the only category of animate "inventions" they intended to authorize was plants (the dissent's). But at least five generations of Supreme Court jurisprudence have agreed that deciding what boundaries on patentable subject matter will best "promote the progress of science and useful arts" is Congress's job, and all the judiciary can do is try to construe the law correctly based on the fact patterns presented. It's interesting that you identify this as a question of legal philosophy, though. I would agree to some extent, noting the parallel to non-obviousness as discussed in Justice Douglas's concurrence in A&P Tea v. Supermarket (1950), and following it back to Justice Bradley in Atlantic Works v. Brady (1882). But the judicially created (Hotchkiss v. Greenwood, 1851) doctrine of non-obviousness was codified by Congress in 1952, and at the next opportunity (Graham v. John Deere, 1966, about which more later) the Supreme Court adopted Congress's "more practical test of patentability" in Section 103. I would suggest that the Supreme Court's deference to Congress where the scope of patentability is concerned, once the non-obviousness requirement was duly codified, foreshadows the corresponding view of copyright in Eldred v. Ashcroft. I think it likely that none of the Justices considered the Sonny Bono Act wise; but as the Eldred opinion states in its concluding paragraph, "The wisdom of Congress' action ... is not within our province to second guess." > Well, here's a nice simple one for you. > > Diamond v. Diehr was wrongly decided; it overturned Parker v. Flook for > no particularly good reason, and didn't even have the decency to admit it. > > "Respondents' claims must be considered as a whole, it being > inappropriate to dissect the claims into old and new elements and then > to ignore the presence of the old elements in the analysis." To my eyes, Footnote 12 of the Diehr opinion does a good job of explaining why they didn't need to overrule Flook to arrive at this conclusion: It is argued that the procedure of dissecting a claim into old and new elements is mandated by our decision in Flook which noted that a mathematical algorithm must be assumed to be within the "prior art." It is from this language that the petitioner premises his argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter. The fallacy in this argument is that we did not hold in Flook that the mathematical algorithm could not be considered at all when making the 101 determination. To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventi
Re: OT: How I learned to stop worrying and love software patents
I wrote, in response to Prof. de Rezende: > Yes, all very lovely, I've read Douglas Hofstadter's books too. ... This was a cheap shot, and I'm ashamed to re-read it. I didn't mean by this that Prof. de Rezende was not right to ground the "algorithms are mathematics" perspective in the primary literature of computer science, or even that it isn't more correct in a theory-of-knowledge sense than other perspectives. It's just that I don't think this calculus is helpful when interpreting a patent statute, because that formal relationship is neither what the legislators had in mind nor representative of the economics of the field. In any case, Pedro didn't get those ideas secondhand from Douglas Hofstadter, nor would they be any less valid if he had (I rather enjoyed Hofstadter's books myself and appreciate his popularization of topics that would perhaps otherwise be much less widely discussed outside academia). It really wasn't nice of me to dismiss Pedro's comments in those terms, and I apologize and ask his pardon. Cheers, - Michael
Re: OT: How I learned to stop worrying and love software patents
On 7/24/05, Pedro A.D.Rezende <[EMAIL PROTECTED]> wrote: > Algorthms are, in a general sense, semiotics, for the step-by-step > problem solving procedure processes data. When the processing is to be > done by a digital computer, the instruction set in which the algorithm > can be encoded sets and encloses, since Alan Turing's seminal work in > the 1930's, the procedure into the realm of theoretical mathematics. And > until Alonzo Church's thesis (cathegorizing this enclosure) is > disproved, this enclosure is definite. Yes, all very lovely, I've read Douglas Hofstadter's books too. Likewise, chemistry is physics and psychology is biology. But that doesn't tell us anything about the skills applied by practicioners in the field (hint: most coders can't do Big O analysis, let alone solve an integral), or about which "useful arts and sciences" the Constitution authorizes Congress to encourage through the patent monopoly. If you want to understand how far a court is willing to go with you along the "mathematics is in the realm of abstract ideas and therefore unpatentable", you have to step from Church and Turing's world into Von Neumann and T. J. Watson's. > Either way, whether specifically as theoretical mathematics (via > computers), or generally, for being semiotics, algorithms are in the > domain of "laws of nature, natural phenomena, and abstract ideas" > (refer to Charles Peirce, Ferdinand de Sausurre or Umberto Eco going > back to 1867, only foourteen years later than the oldest quote allegedly > paraphrased from Diehr) Nice "allegedly" -- translates to "I didn't bother to check", right? My quote from Diehr (1981) was exact; the Diehr opinion in turn quotes from various other cases back to Le Roy v. Tatham (1853). Here's the Diehr link again, for your convenience: http://laws.findlaw.com/us/450/175.html . Allow me to suggest that, if you do read it this time in search of rebuttal material, you at least read Section III of both opinion and dissent. You might also evaluate the merits of Judge Plager's response to the concerns raised in Justice Stevens's Diehr dissent, found in Section D of AT&T v. Excel ( http://caselaw.lp.findlaw.com/data2/circs/Fed/981338v2.html ). In any case, the writings of the most respected of philosophers and novelists are of less precedential value than the most pedestrian of appellate court decisions. It is entirely possible that policy-makers in Brasil have drawn the line differently -- as is well within their rights -- but to prove it to me you will need to show me how it works in your courts. Cheers, - Michael P. S. Watch for a possible grant of certiorari in Laboratory Corp. of America Holdings v. Metabolite Laboratories, Inc., which could be followed by a Supreme Court ruling giving better guidance on the whole "laws of nature, natural phenomena, and abstract ideas" business from Diehr. The heads-up came from http://www.ipfrontline.com/printtemplate.asp?id=4357 , which lists a number of interesting upcoming decisions.
OT: How I learned to stop worrying and love software patents
[Note to d-l readers: the subject is tongue-in-cheek, mmmkay? Film reference.] On 7/24/05, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Michael K. Edwards wrote: > > Patent is not copyright; you don't obtain a monopoly on describing > > your method, you obtain a monopoly on its commercial application. No > > patent prohibits you from making a computer program implementing any > > algorithm you like; but if you sell it as a solution to the problem > > addressed in the patent, without authorization from the patent holder, > > you are infringing. The same goes for selling its output, if that's > > covered by the patent -- compare against the enforcement of chemical > > process patents. > Thanks for this informative comment. So I guess you would phrase the problem > differently, but perhaps you agree on the existence of the problem. As far > as I can tell, (a) mathematical problems are being used as "problems" in the > patent domain (apart from "solving a system of linear equations", a cipher is > a mathematical transformation and the problem of finding one is a > mathematical problem); (b) giving things away is considered just as bad as > selling them; and (c) selling it as a solution for a different problem is > considered just as much a violation as selling it as a solution for the same > problem. I really hope one or all of these is not true, but every time I > look at something in software, they all seem to be true. I think these are all judgment calls under the current system, and doomed to be judgment calls under any system that is making an honest effort to "promote progress in the useful arts and sciences". Let's take your example of ciphers as "mathematical problems". Cryptanalysis is higher math, all right, and no patent on a technique of cryptanalysis should be permitted to issue (and as far as I know, none ever has). But the design of a cipher resistant to cryptanalysis shades over into industrial application of that math as well as the more mundane techniques of efficient coding, just as the design of a corrosion-resistant alloy is an industrial application of surface chemistry as well as metallurgy per se. As for (b) and (c): There is not ordinarily a distinction between giving away and selling an infringing item -- after all, there are ways to profit from undermining part of a rival's business model other than extracting per-unit revenues from his potential customers. And while the domain of application and the nature of the useful result are supposed to be part of the statement of a patent's claims, there is some leeway to argue that the disclosure equally teaches an invention in a closely related area (such as video vs. still image compression). But constructing a device or writing a program that has both infringing and non-infringing uses, and taking some care not to encourage or extract revenues from infringing use, can be a pretty good defense against a contributory infringement claim -- especially where the novelty claimed in the patent is limited to applying a well-known technique to an unexpected problem. (IANAL, TINLA.) There isn't a lot of litigation (as opposed to bluster, brinksmanship, and political posturing) on software patents, and AFAICT what there is is pretty benign. I think the State Street decision is somewhat dubious (as I have written earlier), simply because it risks a major change in the effective scope of patent protection without any indication of a legislative or Supreme Court mandate to do so. Ditto EPO parallels such as Sohei (T 769/92) and Pettersson (T 1002/92). The "useful arts and sciences" are traditionally understood to be those that manipulate the natural world, not markets. But I don't really have any problem with jettisoning the dualist baggage and adopting the Alappat test to call digital results "tangible" if they represent a useful advance in the state of the art in an applied field. In any case, just because a patent issues doesn't mean it isn't complete crap. Don't be fooled into lumping USPTO howlers (or, for that matter, their EPO parallels) in with those which have survived scrutiny in an adversarial setting. [snip] > > applications of software techniques to practical problems > > are just as patentable when stated using "process" lingo as when using > > "machine" lingo, certainly now (per AT&T v. Excel) but AFAICT all > > along. > Well, it's straightforward, anyway. Any algorithm is a "process" by > definition. The problem is that it's a *mathematical* process. If you don't > have a prohibition on the patenting of mathematics -- and apparently we don't > have one on the statute books in this country -- algorithms are obviously >
Re: A question about converting code to another programming language
Yep, here's the associated politics: http://blogs.zdnet.com/BTL/?m=20050311 and especially: http://www.eweek.com/article2/0,1759,1775159,00.asp It will play well to the cheap seats if Microsoft can cram a few obvious stupidities of its own through the examination process (which, as we have seen, is not the arena where real challenges to patents are brought) and then say, "see, we have something to lose by tightening patentability standards too." Then they can sponsor legislation that makes it harder to enforce genuine, valid patents in the courts under cover of USPTO reform. Catch this bit of Microsoft's proposal: "Create a special court that would consolidate and hear all patent cases at the federal district level in order to improve consistency and predictability of patent litigation." In other words, take the power to investigate the facts surrounding patent infringement out of the hands of Federal district courts nationwide, which are quite difficult to systematically subvert, and concentrate it in a single, brand new, revolving-door, D.C.-based court of "fact". Now do Microsoft's efforts to play both ends against the middle start to make sense? Cheers, - Michael
Re: A question about converting code to another programming language
And while we're naming and shaming IP law firms who should, in my non-lawyer opinion, know better, let's add Lee & Hayes PLLC: http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=/netahtml/PTO/srchnum.html&r=1&f=G&l=50&s1='20030028685'.PGNR.&OS=DN/20030028685&RS=DN/20030028685 If the Federal circuit finds a "concrete, tangible, and useful result" in the .NET class framework, I will certainly abandon any attempt to defend any part of the US patent system. Cheers, - Michael
Re: A question about converting code to another programming language
The prospect of this patent application resulting in a patent that can be successfully litigated is zero. (IANAL, TINLA.) http://appft1.uspto.gov/netacgi/nph-Parser?Sect1=PTO1&Sect2=HITOFF&d=PG01&p=1&u=%2Fnetahtml%2FPTO%2Fsrchnum.html&r=1&f=G&l=50&s1=%2220040230959%22.PGNR.&OS=DN/20040230959&RS=DN/20040230959 The principal "inventor" himself is less than impressed with his employer's attempt to patent such a triviality, which is in any case long since part of the prior art. http://www.panopticoncentral.net/archive/2004/11/20/2321.aspx Blame Microsoft for stupidity if you like, but IMHO the rapacity award goes to Woodcock Washburn LLP. Filing such a patent application is such a waste of the time and money of everyone involved, and will result in so much abuse heaped on the participants if it is not quietly abandoned, that it's hard not to see it as a political maneuver on someone's part (perhaps against IBM, whose participation in the patent system is far larger than Microsoft's). An attorney who would play ball with such a stunt is risking public excoriation of himself and his firm. Cheers, - Michael (IANAL, TINLA)
Re: Patents on encoders in Europe
On 7/23/05, Loïc Minier <[EMAIL PROTECTED]> wrote: > With the recent clarifications on software patents in Europe, would it > be possible to distribute encoders packages from Europe? Very inadvisable without an encouraging opinion from competent counsel, which (IANAL, TINLA) you won't get without cooperation with Thomson. Based on their recent statements, however, it appears to me that there might be an approach towards them that could result in a modus vivendi; thread at http://lists.debian.org/debian-legal/2005/07/msg00273.html . > My current understanding is that the algorithm can be patented, but a > pure software implementation is not violating such a patent. Is that > correct? No. Mathematical methods and computer programs "as such" are explicitly not patentable under the EPC, but that is currently understood to mean that the invention must have a "technical effect" beyond the manipulation of numbers and bits in a computer's memory. This is very similar AFAICT to the "concrete, tangible, and useful result" standard applied in the US since the 1994 In re Alappat ruling. Thread, with references to case law and the participation of an actual European lawyer, at http://lists.debian.org/debian-legal/2005/07/msg00323.html . Cheers, - Michael (IANAL, TINLA)
Re: generated source files, GPL and DFSG
On 7/22/05, Glenn Maynard <[EMAIL PROTECTED]> wrote: > In other words, we'll take something as source that we know isn't, > because we like nVidia. ... Hey, I didn't say I liked the idea myself. I'm just calling it like I see it. I would say that the core functionality of the nv driver is not maintainable or improvable by anyone outside nVidia, but at least it can be recompiled to pick up changes in X.org data structure layout or whatever and there is some chance of point fixing it. It's not entirely my idea of source code -- but then neither are the Emacs internals. Cheers, - Michael
Re: generated source files, GPL and DFSG
On 7/22/05, Jeff King <[EMAIL PROTECTED]> wrote: > Let's say I write a program in C code and compile it to assembly > language, which I distribute. Somebody else writes an equivalent program > directly in assembly language and distributes it. The distributed > products contain the same amount of information about how they work. > > How is one of these free and the other non-free? Nothing stops us from considering the evidence of the upstream developer's intent when they release a program in a less than perfectly maintainable condition. It's natural that they know some things about it we don't, but if it seems obfuscated beyond the limits of good faith, somebody should blow a whistle. We know perfectly well that the NVidia driver is in the condition it's in partly because its development is funded by a profit-seeking entity that has no wish to destabilize its market position, either by making it easier for a competitor to produce a graphics chip to which the driver could easily be ported, or by losing its privileged relationship to Microsoft when an inspired Linux hacker reworks the driver and related bits of the Linux graphics subsystem to get triple the FPS of the Windows (or XBox) version. (I think triple is probably an exaggeration, but there's room for improvement.) It's very clever of NVidia to support both a fully proprietary Linux driver and a driver we can call "open source" if we don't look too closely. Do we mind being manipulated this way? A little, but we work with it. That's an extreme case, but the fact is that upstreams do all sorts of things to the code and documentation to pursue agendas at best orthogonal to, and often in opposition to, their users' and especially potential forkers' interests. [I was going to add another rant about the FSF here, but got bored with it.] Cheers, - Michael
Re: generated source files, GPL and DFSG
On 7/22/05, Florian Weimer <[EMAIL PROTECTED]> wrote: > It makes it very hard to fix bugs in the pregenerated files. > Look at the gsfonts mess, it's pretty instructive. That's an argument from maintainability, not from freeness. The two are, in my view anyway, distinct though related judgments. > >From a technical point of view, Java bytecode is as good as > uncommented source code. The Java-to-bytecode compilers are not very > sophisticated. Ditto. But observe that bytecode is not only uncomment_ed_, it is effectively uncomment_able_, which makes it far less maintainable by downstream contributors. The freedom to modify is not reduced to a technicality by relative impracticality -- a license to modify is a pretty good defense against complaints about reverse engineering and repurposing -- but it is certainly abridged. Again I would argue that, if the GFingerPoken source tarball contained only the XPM versions of the artwork and did not discuss how they had been created, that would represent at most a minor barrier to ongoing maintenance of the software. The fact that upstream has gone the extra mile and provided povray input is very nice; a future maintainer who wants to render them into, say, Display PostScript for use on a 300 DPI LCD has something to work with. Someday perhaps these will be the "bad old days" when people didn't turn up their noses at any code or data without a perfect, all-free-tools audit trail. Given the pressure to cram abandonware clones into main, it doesn't look to me like we're going in the direction of higher standards; but maybe that's only a short term trend. I don't like the sort of message it would send to relegate GFingerPoken to contrib while retaining the many (perhaps most) other games in main made of crap-ass code and bitmap images; but as usual IANADD and it's not my problem. :-) Cheers, - Michael
Re: On the definition of source
On 7/21/05, Rich Walker <[EMAIL PROTECTED]> wrote: > I think you mean: > > The story that is circulated now about the tweaking of the S-box is > that it was to make DES more resistant to differential cryptanalysis, > which was unknown at the time. I tend to give Bruce Schneier a certain amount of credence, although I recognize that he is not a historian. It is well documented that the NSA and at least some of the IBM researchers who contributed to the DES design were cognizant of the technique now known as differential cryptanalysis prior to the finalization of the DES S-boxes, and that the S-boxes are locally (and very nearly globally) optimal with respect to d-c attack. > Once you allow systems to exist with poor disclosure of the construction > process of their internals, you have opened up a back door wide enough > to drive a thousand exploits through. I don't pretend to do a security (or even maintainability) audit of all the code that passes through my hands. I frequently rely on the good faith (and continued existence) of upstream when choosing software products on and with which to build my own work. Yes, I do some due diligence; where it seems worthwhile, I spot-check the code quality, the documentation completeness, and the history of the individuals and organizations; and where it really matters, I make some attempt to evaluate the test coverage and the computational complexity of core algorithms. Very, very few open source projects (and even fewer of the closed-source projects whose internals I've seen) impress me on all of the above scores; but you've got to have some tools to work with if you expect to build big things on a small budget. > If you are aware that the providers of the system have an agenda, then > it actually makes sense to work *harder* on the "full disclosure of all > components necessary to reconstruct" angle than you would otherwise. Everybody's got an agenda. If you're confident that you understand what that agenda is, then you can hedge intelligently against it. Openness is good, but sometimes it reveals not-so-pretty things, and you need to think about whether a shortcut somebody admits to have taken is repugnant or merely regrettable. > (Yes, I *am* in the business of producing stuff that you can only > reproduce part of from the design data.) Who isn't? :-) Cheers, - Michael
Re: libdts patent issue?
On 7/21/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: > US Patent class 705 is full of such patents where the examiner > wasn't "on the ball". Only very recently have I seen US office > actions where the examiner talks about "technological progress". Oh, I agree with you completely that this is one of the worst areas of incompetence and/or regulatory capture in the USPTO. But it's hard for me to lay the majority of the blame at the feet of the legislative or judicial branches, based on what I understand to be the public record. Maybe the State Street case was chosen for litigation because it's an extraordinarily convincing presentation of the facts illustrating the principle that an invention can solve a microeconomic problem rather than engineering as such. If so, it has its parallels in EPO case law, including two cases cited by your PBS Partnership example. > My understanding was that this kind of patent was perfectly > allowable under US law. There's a useful, concrete and tangible > result, and you can't throw it out because it's a method of > doing business. That's how "everyone" interpreted State Street Bank. There still needs to be an authentic engineering relationship between the claimed process and a tangible outcome, which I just don't see in PBS Partnership. The State Street opinion didn't change that requirement, and I find it difficult to imagine the Federal Circuit authorizing the acceptance of the disclosure and claims of #4,750,121 as an "invention". Generally speaking, the precedential value of an appellate opinion doesn't extend far beyond its holdings. The only holdings I can find in the State Street opinion are: We hold that declaratory judgment plaintiff State Street was not entitled to the grant of summary judgment of invalidity of the '056 patent under § 101 as a matter of law, because the patent claims are directed to statutory subject matter. OK, that's just a summary of the holding below; no risk of that statement by itself being dispositive in a later case. Today, we hold that the transformation of data, representing discrete dollar amounts, by a machine through a series of mathematical calculations into a final share price, constitutes a practical application of a mathematical algorithm, formula, or calculation, because it produces "a useful, concrete and tangible result" -- a final share price momentarily fixed for recording and reporting purposes and even accepted and relied upon by regulatory authorities and in subsequent trades. That's a statement that Alappat's "useful, concrete, and tangible result" test is applicable when the result is market activity rather than seed-free cotton or goop in a test tube. Now, if you ask me (IANAL, TINLA), this holding is unfounded in Supreme Court authority. The main Supreme Court precedents (Diehr and Benson) cited as support by the State Street court rely on the 1877 Cochrane v. Deener case, cited in part: "A process is a mode of treatment of certain materials to produce a given result. It is an act, or a series of acts, performed upon the subject-matter to be transformed and reduced to a different state or thing." That doesn't sound to me like carte blanche to patent a mode of pricing analysis. Flook isn't on point, and to my eye the claim of support from Chakrabarty is disingenuous at best; I cannot agree that "the Supreme Court has acknowledged that Congress intended § 101 to extend to 'anything under the sun that is made by man" based on a passing quotation from legislative history in the Chakrabarty opinion, nor does a pricing proposal strike me as a "_thing_ made by man". But I see no indication that State Street Bank sought certioriari; so we may have to wait for a later business methods case to see whether the Supremes rip the Federal Circuit a new one for abuse of discretion. By the way, I need to correct something I said earlier. The State Street court did not direct the USPTO to cease the practice of automatically denying patents on business methods. The USPTO had already done so in 1996, presumably in part as a consequence of the Alappat ruling. The State Street opinion comments approvingly on the 1996 editions of the Manual of Patent Examining Procedures and Examination Guidelines for Computer Related Inventions, closing with: "We agree that this is precisely the manner in which this type of claim should be treated. Whether the claims are directed to subject matter within § 101 should not turn on whether the claimed subject matter does 'business' instead of something else." Cheers, - Michael
Re: On the definition of source [Was: Re: generated source files, GPL and DFSG]
On 7/21/05, Don Armstrong <[EMAIL PROTECTED]> wrote: [snip stuff where I agree with Don 100%] > ITYM Freedom 1 (the second) or possibly Freedom 3 (the last). In > either case, in this situation, you've got everything that the > original author has to be able to modify the work. You're not being > restrained by information that the author could theoretically convey, > but hasn't. [If you are, then I submit that you haven't been given the > prefered form for modification.] > > To me, the FOSS movement is about giving everyone the same information > that the author has; in this way everyone has the same ability to > modify the work. When that is the case, the prefered form of > modification has really been distributed. "Giving everyone the same information that the author has" is a lovely ideal, but applying it too strictly can lead to Pyrrhic victories. If you read the primary literature in any scientific field, you will find that people do not write a textbook every time they publish a result, and that very frequently reproducing an author's result would require a degree of ingenuity and an amount of labor comparable to the author's. Since I've got legal lingo on the brain lately, let me suggest a "rebuttable presumption" that the author has tried to provide enough of a public record for later authors to work with. I can think of several pieces of software, nominally released as open source, for which that presumption wouldn't be hard to rebut; but GFingerPoken certainly isn't one of them. In any case, I think the ftpmasters, in consultation with the security team, are perfectly capable of rejecting uploads because they are in their opinion unmaintainable for lack of adequate disclosure of how the damn thing works. > So you're saying that commented assembly output, which is modifiable > in a smaller number of ways than the actual C source would also be > source? > > Or that the ogg file that is the output of a Lilypond file run through > timidity would also be source? > > I'm frankly at a loss to reconcile these examples with your statements > above about modifiability. Since modification is so important, why > should we accept as source forms that capriciously limit the > modifications we can perform, merely because we are not the original > author? I think it's important to make a distinction between an intent to obfuscate and an intent to enable recipients to make a large class of changes without needing fiddly-to-configure or hard-to-obtain tools. If the truth of the matter is that a given fragment of C code, only needed on a couple of processor families, broke the GCC optimizer in every other point release, then why shouldn't it be OK for the author to supply assembly output from a "known good" compiler snapshot and call it source pending a stabler compiler? If the ogg file is supplied as input data for a music recognition regression test, how much do we care whether it can be regenerated from Lilypond input? If you're going to accept programs for inclusion in main that are written and maintained by people with an agenda -- which includes but is not limited to corporate backers who profit from the sale of tied produces and services -- you have to recognize that not everything about their design goals and inner wokings is fully disclosed. The classic example is DES; the S-boxes were designed to be resistant to differential cryptanalysis, which was unknown in the public literature at the time (see http://en.wikipedia.org/wiki/Differential_cryptanalysis ). Commercial users just had to take the NSA's (i. e., MITRE's) word for it that S-box tweaking was motivated by a desire to strengthen DES rather than to Trojan it. We trust people all the time not to offer us excessively Faustian bargains. Will the folks at Xiph.org spring a submarine patent covering Ogg Vorbis on the free software world someday? I think that's extraordinarily unlikely, unless they are forced to the conclusion that there is no way to defend against other patent holders without having some proprietary rights of their own to countersue on; and if it came to that, they would doubtless offer no-fee licenses to open source decoder implementations. I am confident in these statements, not for any legalistic reason, but because their public conduct inspires my trust and because I have some sense of the foreseeable consequences to them of doing otherwise. Should we accept just anybody's word about whether we are getting the means of maintaining a program along with its nominal "source code"? Of course not! Nor should we take their uncorroborated word for its authorship or patent-free-ness. In short: Trust, but verify. (Often attributed to Ronald Reagan, but AFAICTWALHFG translated from a Russian proverb "Doveryay, no proveryay" of unknown provenance that was a favorite of both Lenin's and Gorbachev's. I will credit Reagan for popularizing it in the US. :-) Cheers, - Michael
Re: libdts patent issue?
On 7/21/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: > The example I gave earlier is > http://legal.european-patent-office.org/dg3/pdf/t950931eu1.pdf > which is European patent application > http://v3.espacenet.com/textdoc?IDX=EP0332770 > that was rejected for being a business method as such. And > if you read the decision, you'll see that there was no way they > were going to allow this application. Agreed. As well they shouldn't have. > The corresponding US patent US4750121 was allowed without any such > problem. Claim 1 does not even recite "a computer", only several > "means" that perform certain steps to a master trust. The US examiner was clearly not on the ball, and/or not properly advised as to the significance of State Street. The PBS Partnership patent would, I suspect, be tossed out if litigated in the US, because there is not a reliable engineering relationship between the process being followed and the desired outcome. It's a collection of organizational tactics, which might represent an effective business approach, but it's not an invention. > So in my view, the fact that this kind of difference occurs > shows that in the US a lot more is patentable than in Europe. I think that cuts both ways. Look how long some of the MP3 patents, first issued in Germany, took to prosecute through the US system -- in a couple of cases, a decade or so after the German version had issued. Although I have not yet correlated against the originals, I would not be at all surprised to find that the allowed claims of the US versions are much narrower, judging from the continuations-in-part, abandoned applications, and all that. I have yet to see any evidence that persuades me that what is patentable in the US in some application area is a strict superset of what is patentable in Europe. Cheers, - Michael (IANAL, TINLA)
Re: libdts patent issue?
On 20 Jul 2005 23:14:28 GMT, MJ Ray <[EMAIL PROTECTED]> wrote:
> If the EPO is an artefact of the EPC, it can't be "the people
> who wrote that law" so why is EPO reinterpreting the EPC?
> Is it actually known whether the drafters meant the claimed
> "you can patent maths as part of a machine" view rather
> than the "maths is not patentable" from the UK Patent Act?
The EPO's job (particularly that of its Board of Appeals) is to
interpret the EPC in specific cases, helping inventors work through
mostly uncontroversial criteria for a well-crafted patent application
and recommending approval or denial to national patent offices. While
it is not precisely a court, it operates on similar principles and
rules of law, and the rarity (as I understand it) of judicial review
of its rulings (as opposed to those of national patent offices) puts
it in a position of subject matter authority not unlike the US Federal
Circuit's.
The EPC doesn't say "anything with math in it is unpatentable", nor
does it say "anything with math in it, plus any physical object, is
patentable". It says:
Art. 52 (3) The provisions of paragraph 2 [including the prohibitions
on patenting "mathematical methods" and "programs for computers" --
MKE] shall exclude patentability of the subject-matter or activities
referred to in that provision only to the extent to which a European
patent application or European patent relates to such subject-matter
or activities as such.
That "as such" has to be given some practical meaning by the Board of
Appeals in order to provide a concrete and reliable guide to examiners
and applicants as to what does and doesn't pass this "subject matter"
test. It's not just a couple of throw-away words -- it's the entire
point of an entire clause of the Convention. AFAICT there is no
analogue of the House Report on the Copyright Act of 1976 for the
Board to consult as evidence of legislative intent, so they have to
roll their own.
>From the one Board of Appeals decision I've looked at closely
(discussed ad nauseam in my reply to Arnoud), it appears to me that
the Board takes almost exactly the same stance articulated in recent
years by the Federal Circuit in the face of similarly ambiguous
guidance from Congress and the Supremes. Dualism is on the retreat,
processes and machines are on an equal footing, and what makes
something not an abstract idea "as such" is that it be "susceptible of
industrial application" to reliably achieve a particular useful
result.
The In re IBM ruling is not what I would call a model of clarity and
vigor, but it seems to me to stand for the same proposition as AT&T v.
Excel -- the subject matter test is there to distinguish the
theoretical from the applied, not to exclude applied science whose
underlying natural law is that of computational complexity and theory
of approximation instead of chemistry or physics. The "novelty and
inventiveness" criterion is still there to bar inventions that are
trivial in light of the prior art.
In re IBM directs the examining division, not to grant the claims at
issue, but to evaluate them for "further technical effect" as a
question of fact rather than of law. ("Further", here, means that the
examiner should ignore "technical effects" incidental to the
computer's internal mechanisms for executing programs.) The
"technical effect" formula is facially different from the US's
"useful, concrete, tangible result", but they are equally judicially
created, and leave ambiguities regarding the patentability of
inventions at the fringe of the technical world such as automated
securities trading.
The EPC does explicitly exclude "methods for ... doing business", with
the same "as such" caveat; and in this it facially differs from US law
following State Street. It's quite off-topic here so I won't go into
any detail, but In re PBS Partnership (the business methods case
Arnoud cited) denied issuance of a patent on quite strict "absence of
technical effect" grounds, distinguishing it on the facts from other
cases granting patents involving business methods such as Sohei and
Petersson. The latter presumably remain controlling authority under
which the EPO must grant business method patents that meet the
"technical effect" test.
> That's something that I've wondered more than a few times.
> I know that's not the end of it, as pro-patenters seem
> to be pushing for their interpretation just in case it's
> not clear. I'm still amazed that the commercial UKPO has
> such a vital role in informing legislation - I thought the
> idea of Executive Agencies and Trading Funds was to offer
> some independence of government. Having them involved is
> like inviting Unisys (of BurnAllGIFs fame) to help run an
> information service about Free and Open Source software...
Do you really think it's fair to characterize as "pro-patenters"
people who are simply pointing out:
the actual state of the law as embodied in decisions by the
relevant administrative and judicial autho
Re: libdts patent issue?
Summary: I can still find no substantive difference between US and EPO law on software patentability. On 7/20/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: [snip good stuff] > For contributory infringement you need additional evidence. > Contributory infringement is knowingly selling or supplying an item > for which the only use is in connection with a patented invention. > If you had a good faith belief the item had non-infringing uses, > then you're not contributing to infringement. > > Also the penalties tend to be different. So I do think there is > a difference. Fair enough. AIUI the standard here is that it must actually have substantial non-infringing uses and the vendor must be making a good faith effort to sell it for its non-infringing uses rather than using them as cover for a larger, infringing economic opportunity. When I get around to finding precedents from the Federal Circuit that clarify this question, and evaluate the associated penalties, I'll let you know. :-) [snip more good stuff] > The law says so: articles 52(2) and (3) EPC. > http://www.european-patent-office.org/legal/epc/e/ar52.html Understood that that's the statutory basis for the subject matter test (parallel to 35 USC 101), insofar as the EPC constitutes statute rather than treaty. > The EPO's Board of Appeals has issued several decisions that > discuss this article: > http://legal.european-patent-office.org/dg3/pdf/t971173ex1.pdf > (see page 12 of the PDF, sections 4 & 5) I've made a quick pass through this opinion (In re IBM) and find it unsurprising. Methinks the EPO's law clerks need to take some lessons in concise and vivacious writing from some of ours. I also observe that the case law established by previous Boards of Appeal is very much the primary source of citations, and if your courts aren't bound by stare decisis except in the same sort of extraordinary circumstances that ours are, I can't tell the difference. See Sections 7 and 11 of this ruling, and particularly this sentence from 11.3: This means that the question to be decided upon in the present appeal has not been answered earlier by the boards of appeal. Strictly speaking, the cited reasonings may therefore be considered to constitute obiter dicta and not ratio decidendi. As for the content of the ruling, it discusses the "physical" effect silliness quite a bit (and rather inconclusively), then tells the lower court to go back and consider the disputed claims on their merits, evaluating them for non-trivial "technical effect", rather than assume that they describe software "as such". Here is Section 12.2, the heart of the ruling: The present appeal relates to whether the subject matter of claims 20 and 21 is excluded from patentability under Article 52(2) and (3) EPC. The examining division decided that it was. The Board wishes to emphasize that it has decided only that a computer program product is not excluded from patentability under all circumstances. To the Board, those circumstances include the exact wording of the claims at issue. As the wording of present claims 20 and 21 shows, there are various ways in which a claim to a computer program product may be formulated. >From the fact that these claims were refused by the examining division on the basis of the cited passage in the Guidelines, the Board concludes that the examining division did not consider the exact wording of those claims in detail, and acknowledges that, from the examining division's point of view, there was little need to do so. However, now that the Board has decided that not all computer program products are prima facie to be excluded from patentability, a thorough examination of the exact wording of the claims has to be carried out. In order to preserve the appellant's right [not? -- MKE] to have this determined at two instances, the case is remitted to the first instance for further examination of this point. Apart from the substantial difference in writing style, it seems to me to be rather more similar to the opinions in Diehr, Alappat, and AT&T v. Excel than it is different. I have already spoken to AT&T v. Excel; the unanimity of this opinion, together with the denial of certioriari in State Street, suggests that this is now quite settled law in the US. Note that Alappat (1994) was decided en banc, with the "majority" opinion written by the same judge who wrote State Street. Alappat has one of the more complex opinion structures that I have seen: Rich, J., with whom: as to Part I (Jurisdiction): Newman, Lourie, and Rader, JJ., join; Archer, C.J., Nies, and Plager, JJ., concur in conclusion; and Mayer, Michel, Clevenger, and Schall, JJ., dissent; and as to Part II (Merits): Newman, Lourie, Michel, Plager, and Rader, JJ., join; Archer, C.J., and Nies, J., dissent; and Mayer, Clevenger, and Schall, JJ., take no position. This alone tends to be enough to trigger a lot of loose talk about the conformability of the decision with pre-existing l
Re: MP3 decoder packaged with XMMS
On 7/19/05, Monty <[EMAIL PROTECTED]> wrote:
> On Tue, Jul 19, 2005 at 04:05:59PM -0700, Michael K. Edwards wrote:
> > That's mighty cool. Can you say anything about the Mercora encoder's
> > psycho-acoustic bits
>
> In fact, I can't say much about it (I know all about it but am under
> NDA).
That's what I expected. Such is life.
> > or about how you approach the risk that loading
> > a particular codebook into the Vorbis decoder would result in
> > something patent-infringing?
>
> The codebooks are huffman trees + a value per leaf: just data. The
> code that applies them may infringe, but I doubt very much that raw
> data itself can, genomics stupidity notwithstanding.
That's a little like saying that no software can possibly infringe a
patent because the object code is just data consumed by a Von Neumann
machine. Only a little, of course; the codebook abstraction is hardly
Turing complete. But suppose that the Vorbis decoder fit most of the
claims of a patent, and that a certain pattern of codebook usage
completed the fit. Then combining the two would be a
patent-infringing use, and the suppliers of one or both (not to
mention of the encoder) could be held liable depending on criteria
such as whether there are substantial non-infringing uses.
Let me make that a little more concrete. Lucent's patent #5,341,457
(at issue in the Dolby suit) has four independent claims:
#1 ("method of processing ... audio signals", i. e., encoding)
#10 ("storage medium" to which is applied a "recording signal", i.
e., the data format put in a "physical" form according to the
patent-agent shibboleth of the day)
#13 ("method of transmitting audio signals", i. e., streaming encoder)
#17 ("method for generating signals", i. e., the encoding process
again, but this time stated all in one claim and hewing a little more
closely to the preferred embodiment than #1 does)
The disclosure also describes the decoder for these "signals". It is
wholly plausible to me (IANAL, TINLA) that the history of the patent
application would support a claim either that the act of decoding such
a "storage medium" is an infringing use or that the examiner
erroneously insisted on the "storage medium" lingo when the proper
subject matter of the invention is the encoding and decoding
processes.
Now, my reading of this patent is that the "novel" bit of each
independent claim is the use of "at least one tonality value
reflecting the degree to which said time sequence of audio signals
comprises tone-like quality" to control the noise masking threshold
used when quantizing. The rest is vanilla blockwise transform coding
(in the disclosure, 2048 FFT). In the preferred embodiment, the
"tonality value" is a "Spectral Flatness Measure", a relatively
inexpensive-to-calculate (given a cheap floating point multiply,
anyway) proxy for a true statistical measure of tone strength. The
disclosure is quite articulate on the scientific basis for varying the
noise threshold, and hence the quantization, based on the degree of
tonality in a given critical band.
A range of noise thresholds would presumably translate, in the Vorbis
codec as it does in the "entropy-coded case" of the '457 preferred
embodiment, to a range of Huffman codebooks. Without going into
needless detail, I submit that one could easily construct a Vorbis
encoder that selected codebooks for residue encoding using
substantially the method taught in the '457 patent. Would its output
be meaningfully distinguishable from that of the reference Vorbis
encoder or of the Mercora encoder? I have not studied either enough
to be able to answer that question.
Note that I turned first to the '457 patent, not least because its
claim structure is simpler, but also because its claimed invention
appears to me to be a little closer to the heart of the Vorbis system.
A quick glance at #5,579,430 (the principal MP3 patent) persuades me
that I could go through a similar exercise, not with claim 1 (since
Vorbis doesn't appear to provide an escape mechanism from codebook
into "PCM", i. e., raw data for rare entries), but with each of the
other independent claims 19 and 22.
Personally I think both of these claims are very weak on both the
originality and non-obviousness fronts. In my unqualified opinion, if
they were ever litigated they would have to have dependent claims
containing non-trivial psycho-acoustic results or other engineering
benefits folded into them, or else they could well be invalidated
altogether. The claims dependent on 22 make it clear that it is about
re-establishing sync in mid-stream, and hence outside the domain of
Vorbis proper. But 19, 20, and 21 together represent a
psycho-acoustic tactic that I wouldn&#x
Re: libdts patent issue?
I wrote, with regard to aspersions cast by Nathanael on the competence and consistency of judicial opinions in intellectual property arenas: > I am glad that I do not live in the dystopic fantasy world you > describe, with incompetent judges obsessed by sophomoric deductions > from Plato and easily led by the nose. Most judges are not software > engineers but few are utter fools, and to argue otherwise you're going > to need to adduce real evidence. To my own opinion I will add the testimony before Congressional committee of Hon. Alex Kozinski of the Ninth Circuit with respect to the consistency between published and unpublished dispositions in the Ninth, found at http://notabug.com/kozinski/unpublisheddispositions . Whatever else you may say about the Ninth Circuit, it is indisputable that many complex IP cases come before its benches, and it is highly reassuring to me that interested parties are apparently unable to identify previously unknown conflicts in its record when invited to do so. Cheers, - Michael (And while I'm citing Judge Kozinski and his law clerks, you might enjoy his comments on the "fair use" doctrine at http://notabug.com/kozinski/fairuse . I haven't decided how I feel about the merits of his proposal, but he's certainly thinking about the problem.)
Re: libdts patent issue?
I wrote: > I am not "pro-software-patent". I think that the USPTO (and, from the > look of it, the EPO) are doing a profoundly incompetent job of > filtering out the trivial and the erroneous from _all_ kinds of patent > applications, not just those which permit an implementation in terms > of a Von Neumann machine with some useful peripherals. But the > reality here on Planet Earth is that the law is a blunt tool ... ... and if you think that US legislators, and even the PTO itself, are not concerned about the "volume of patents" and "cost and difficulty of invalidating cruft" problems, read the CongressDaily article at http://www.govexec.com/dailyfed/0405/042605cdam1.htm . A sane quotation from Sen. Orrin Hatch? Who knew? Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On 7/19/05, Monty <[EMAIL PROTECTED]> wrote: > Ehmer's work is cited but we don't actually use Ehmer's data. The > curves you see in the tonemasking are directly from the ears of yours > truly measured repeatedly over the space of a month and pessimistic > mean taken. There's a 4kHz notch there that's actually an unfortunate > artifact of the measuement. Interesting. AIUI that doesn't necessarily imply that your "golden ears" curve wouldn't be ruled to infringe on a nearly indistinguishable semi-empirical curve if there were such a patent -- but I would think that this aspect of the reference encoder's method would be ruled unpatentably obvious in light of Ehmer. Which, from a point of view in which you prefer unpatentable techniques (not least to reduce the risk of being submarined), is a good thing. > The irony here is that tone-tone masking is the least useful of the > techniques Vorbis uses for psychoacoustic measurement. Higher-speed > vorbis encoders, such as Mercora's, dispense with tone-tone masking > entirely. That's mighty cool. Can you say anything about the Mercora encoder's psycho-acoustic bits, or about how you approach the risk that loading a particular codebook into the Vorbis decoder would result in something patent-infringing? Have you tried, just for kicks, mapping the AC-3 and/or MP3 techniques onto the Vorbis framework? It would be kind of fun to write a lossless transcoder to Vorbis from one or more patent-encumbered formats and to see if there are any discernible patterns in the codebooks. It might also be a prudent defensive measure so that you can demonstrate what a potentially infringing Vorbis stream would look like and evaluate to what extent you can distinguish them from Mercora streams. Could be doubly prudent if there's anything about the Mercora internals that you wouldn't want to have to divulge into the public record during a court proceeding, since presumably in the absence of a patent you have no way of retaining proprietary rights to that encoder's methods of operation other than trade secret law. Note that I have no problem with the Mercora encoder not being open source, and I'm not trying to use this as some sort of object lesson in the legitimacy of "software patents" -- though I could see it shaping up that way in the long run. I'm just trying to understand how deliberately eschewing patents works out in a field littered with them. > Was this declarative relief preemptory or the result of litigation. > If it's preemtive... how the H*** did they manage to do that? I am going on the press release at http://investor.dolby.com/ReleaseDetail.cfm?ReleaseID=161066 ; I haven't yet gone to the law library for the April 22, 2005 ruling in the Northern District of California that granted summary judgment of non-infringement, and I don't even know which judge issued it. I don't know for certain how Lucent's patents wound up in play; here is Dolby's spin on it: In May 2001, Dolby filed a lawsuit against Lucent in the United States District Court seeking a declaration that the '457 and '938 patents are invalid and that Dolby has not infringed, induced others to infringe, or contributed to the infringement of any of the claims of these patents. In August 2002, Lucent filed counterclaims alleging that Dolby has infringed the two patents at issue directly and by inducing or contributing to the infringement of those patents by others. Lucent contended that products manufactured by Dolby licensees incorporating Dolby(R) AC-3 technology infringe those patents. Lucent sought injunctive relief and unspecified damages. Cheers, - Michael
Re: generated source files, GPL and DFSG
On 7/19/05, Matthew Garrett <[EMAIL PROTECTED]> wrote: [an assessment with which I agree almost 100%] The game "GFingerPoken" (which I have played and really quite enjoy) is definitely a "derivative work" of its artwork. It's a complex work that integrally incorporates substantial portions of a previous (or contemporaneous) work, itself capable of standing alone as a work of authorship. That is, in fact, what "derivative work" does mean under copyright law (especially 17 USC), as opposed to all of the other things that the FSF claims it might mean. As I've written previously on d-l, "derivative works" are a particular subset of "works requiring authorization from the copyright holder on the original", defined in 17 USC 101 principally for the sake of the "derivative works" exceptions to the termination clauses in sections 203 and 304. The artwork in GFingerPoken bears precisely the relationship to the game that a song bears to a movie of which it forms part of the soundtrack, and that's the relationship that Congress had in mind as the principal application of those exceptions. Citations to the House Report and the appellate record at http://lists.debian.org/debian-legal/2005/06/msg00116.html . I think the usage of "source code" in the DFSG bears a closer resemblance to "the author's preferred form for modification" a la GPL than Matthew seems to. But while that might present a problem for the X.org nv driver, IMHO GFingerPoken is as he says in the clear. There exist perfectly good tools in main for creating alternate versions of the XPM artworks, and I find it quite implausible that recipients engaged in "bug fixing" would be any less able to do a good job using the XPMs than using the povray input. This is not like massaging the output of a non-free yacc variant instead of porting to bison -y. povray is not a parser generator, treating its output as part of the source tarball does not meaningfully impair the maintainability of the program, and it's stupid to exclude a program from main (i. e., from Debian) simply because upstream was unusually forthcoming about how he created artwork that doesn't look like my one-year-old drew it. Cheers, - Michael (IANADD, IANAL, TINLA)
Re: libdts patent issue?
On 7/19/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 7/19/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > I think you're missing Arnoud's point. It's not math, it's an > > application of math to the problem domain of message encryption. That > > makes it statutory subject matter for patenting, which math as such is > > not. > > "it" is rather unclear here. Sorry. "It" = "the patentable subject matter of the invention". > There's several values for "it", one of which includes the math, and the > other which includes the physical process of encrypting messages. The "physical" part is IMHO a Platonic, dualist hang-up. What matters is the application to a practical problem, such as hiding the information content of message A from people who don't have key B. > Furthermore, "xor" is a rather trivial transposition cipher (at the bit > level), > so regardless of whether or not laws can say whether or not the method > is patentable they do, existing law seems to say that this would not be > patentable. [This would not be the case if bits themselves were non- > obvious, but for that to be the case you'd have to be dealing with > people from a different field of activity.] Arnoud's example is of course not patentable -- but on obviousness grounds, not statutory subject matter grounds. It could, however, easily form part of a patentable invention in which the nature of key B is specified -- and if you had a novel way of generating cryptographically strong pseudo-random bitstreams and wanted to patent its cryptographic applications, that's exactly how you would do it. > If a court has ruled that the patent is valid Nathanael's point that the > court having problems recognizing the facts of the case is indeed a > salient point. Judges do not wade into highly technical areas unaccompanied. You might find Alex Kozinski's speech at http://notabug.com/kozinski/claimschief informative. He was the first chief judge of what is now the US Court of Federal Claims, which is the court of first instance for all intellectual property claims against the United States including appeals from administrative decisions of the USPTO. The Federal Circuit, which handles all appeals from the USCFC as well as appeals from district courts involving the validity and scope of patents, has an even more formidable army at its command. Cheers, - Michael (IANAL, TINLA)
Re: libdts patent issue?
On 7/19/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: > Nathanael Nerode wrote: > > Unfortunately, that's a distinction without a difference. If you're > > prohibited from making a computer program implementing the algorithm, you're > > prohibited from writing a formal description of the algorithm, which is a > > standard textbook technique. (A computer program *is* a formal description > > of an algorithm.) If you're prohibited from selling such a program, you're > > prohibited from selling such a textbook. > > No, you're not. The textbook is not the same thing as a computer > program in machine-readable form. This is the same as with those > crypto algorithms that can't (couldn't) be exported as .c files > but could be exported as printed pages. If you're talking about the Bernstein v. United States and Junger v. Daley cases, the export authorities made this bogus distinction but the courts (the appellate courts, anyway) did not. > > The use prohibition is at least different: if only the use prohibition were > > present, you could indeed publish a textbook, but nobody would be allowed to > > use its techniques without a license. > > That's basically how patent law works in every area. You can > publish the knowledge but not apply the knowledge to make, use > or sell a working device or actual product. And a book that > humans can read is not a product in patent law. Still a bogus distinction. If the book says, "scan me and use me as an implementation, screw the patent holder", I see no reason which it wouldn't be every bit as infringing as a machine sold to end users in build-it-yourself kit form. When such a kit is sold to OEMs by a DVD chipset vendor, they make it very clear what patents they believe OEMs need to license in order to market the result. > > According to this "distinction", we could distribute Debian > > as a "computing textbook" rather than as a "system", and we would then be > > exempt from these patent considerations. > > I think it actually has to _be_ a textbook before you can call > it a textbook. It at least has to have substantial non-infringing uses in its character as a textbook. How much leeway this buys you with respect to a textbook that doubles as an infringing implementation depends on how the judge views your surrounding conduct. > > (The current US rule is that that every such patent is for a "program plus a > > generic computer", so this should actually work. > > Right, although there's lots of legal concepts like contributory > or vicarious infringement that could come into play. But I don't > see how distributing a .c file can be held a direct infringement > of a patent on a "computer equipped with code for performing X". AFAICT this is not correct under your law or ours; statutes and rulings that protect "staples of commerce" and components with substantial non-infringing uses would not protect a "just add water (solder, computer)" kit. Whether this goes by the name of "contributory" or "vicarious" instead of "direct" infringement makes little or no difference. > > A deterministic algorithm which takes one bit sequence as input and produces > > another as output is a piece of pure mathematics. And that is *exactly* the > > sort of thing which is being patented under the name of "software patents". > > To me the distinction is clear: you have to add something to the > algorithm before you arrive at patentable matter. You apparently > consider the addition (a computing device with a memory) to be > irrelevant, and hence you don't see a distinction. The addition of generic computing means is irrelevant as I understand it. You of course are more qualified than I, but I find it hard to believe unless you can show me that judges care about that distinction. As I understand it, what has to be added is an application to a field of endeavor in which it constitutes a practical invention. > > The IEEE magazine (Spectrum) had an article about this recently, which made > > much the same point: you cannot make a valid distinction of this sort. It > > went into some detail on why various "distinctions" used by the US courts > > are > > hopeless and illusory. The current US excuse is that any mathematical > > algorithm "plus a generic computer" is patentable. Is that what's being > > used > > in Europe too? > > The European standard is that the claim must cover a piece of > technology: a device or method that exhibits a "technical effect". > And no, I don't have a definition for "technical". In the US, it's part of what the courts have read into 35 USC 101's "new and useful process, machine, manufacture, or composition of matter". Even a "process" has to be "useful" for a particular industrial or commercial purpose in order to be patentable. Again, see In re Alappat. > In Europe we look at this effect to determine if it's patentable. > The question whether it's an algorithm or software is largely > irrelevant. You could build dedicated hardware t
Re: libdts patent issue?
On 7/19/05, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Arnoud Engelfriet wrote: > >I agree with you that the distinction may seem artificial. But it > >does seem logical to me to say "you can't patent A XOR B but you can > >patent a computer program that does that." > If you can patent the class of computer programs which do A XOR B, > you have patented the abstract operator which does that. Arnoud said that computer programs as such are not patentable subject matter under the EPC, and as I read it that's also true in the US under Alappat's "useful, concrete, tangible result" test. You can patent a computer program that does A XOR B in its character as a solution to the problem of encrypting messages encoded as digital data, but that same program used to achieve some unrelated tangible result isn't covered by the patent. Arnoud, am I getting your argument straight? > >Then the formula remains > >public domain; you just can't make, use or sell a program that > >implements the formula. Were the formula patented, then you couldn't > >even publish a textbook. > Unfortunately, that's a distinction without a difference. If you're > prohibited from making a computer program implementing the algorithm, you're > prohibited from writing a formal description of the algorithm, which is a > standard textbook technique. (A computer program *is* a formal description > of an algorithm.) If you're prohibited from selling such a program, you're > prohibited from selling such a textbook. Patent is not copyright; you don't obtain a monopoly on describing your method, you obtain a monopoly on its commercial application. No patent prohibits you from making a computer program implementing any algorithm you like; but if you sell it as a solution to the problem addressed in the patent, without authorization from the patent holder, you are infringing. The same goes for selling its output, if that's covered by the patent -- compare against the enforcement of chemical process patents. So I think Arnoud's point is that, if a formula or other abstract idea were patentable without any indication of the result being achieved, then a textbook would be just as much an infringement of this counterfactual patent as a computer program or a machine that embodies it. His "make, use, or sell" language is a little bit over-broad, but essentially accurate insofar as the maker may be liable for infringing use of the program by third parties even if he cannot be demonstrated to have made infringing use of it himself or to have profited from its sale. > The use prohibition is at least different: if only the use prohibition were > present, you could indeed publish a textbook, but nobody would be allowed to > use its techniques without a license. If people bought the textbook principally so they could copy down sections that amounted to an implementation of the patented invention, and proceeded to use them in an infringing way, then AIUI you could be liable for contributory infringement. Don't cry First Amendment, either -- it's not the writing and publishing that are getting you in trouble, it's the collusion in tortious and/or criminal activity, and freedom of speech/press doesn't cover that any more that it exonerates a mafia don who orders a hit with a little help from a printing press. > According to this "distinction", we could distribute Debian > as a "computing textbook" rather than as a "system", and we would then be > exempt from these patent considerations. Doesn't make a bit of difference what you call it. What matters is what it is and what people use it for. > (The current US rule is that that every such patent is for a "program plus a > generic computer", so this should actually work. Only the silly people who > use Debian on their computers who are violating the patent, although Debian > might be in trouble for encouraging them. Actually, the users might be fine > too, because they're not using the process on an industrial scale. Hey -- > there's a solid line of argument: the program itself doesn't violate > anything, only the program plus a computer, and it's only combined with the > computer at the end-user's house. This is silliness, of course, but that's > what you get for making a distinction without a difference.) That is not the current US rule as I understand it. Despite the patent-attorney-encouraged "computing means" shibboleths of the 80's and 90's, applications of software techniques to practical problems are just as patentable when stated using "process" lingo as when using "machine" lingo, certainly now (per AT&T v. Excel) but AFAICT all along. The only appellate precedent I have ever seen alluded to which suggests otherwise is an administrative appeal regarding "the Koo patent"; I'll track it down when I have time. As for the "personal use" exemption: thread at http://lists.debian.org/debian-legal/2005/07/msg00267.html . My own opinion (IANAL, TINLA) is that the statutory exemption wouldn't
Re: MP3 decoder packaged with XMMS
On 7/19/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 7/18/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > If the question is, "is it remotely plausible that Fraunhofer claims > > to have patented the Discrete Cosine Transform or its application to > > music compression", the answer is "no". How's that? > > Strawman -- overly specific. OK -- how about this: Fraunhofer, AFAICT, has not attempted to patent any well-known technique of converting data from a time series to a frequency spectrum, nor the idea of applying such a technique to music compression, nor would they or anyone alse have a prayer of litigating such a claim successfully in court. (IANAL, TINLA.) > > > If you don't have a simple answer for these questions, please don't > > > imply that you have. > > > > Where, exactly, did I imply that? Either you're using the word > > "covered" in some way that has nothing to do with the claimed scope of > > the patent (in which case you are IMHO engaging in empty rhetoric), or > > you have been grossly misinformed as to the claimed scope of the > > Fraunhofer patents (and others claimed by reputable players in > > multimedia compression). I'm guessing both. > > You're great with implying things, but... There are a few things for which I have simple answers. What exactly is patented (or patentable) about the MP3 technology suite isn't one of them, and I don't think I implied it was. But there are some questions in that area with simple "no" answers, such as whether Fraunhofer claims to own the DCT or its cousins. > I'm grossly misinformed as to the "claimed scope of the Fraunhofer patents" > in the sense where you say "AIUI a court of fact has the discretion to more > or less completely rewrite the claims of a patent when it is litigated, " The court's discretion is to promote justice by correcting the record to reflect the truth where they are not prohibited by constitution, statute, or rule of law from doing so. When we are talking about the record of an invention, if the patent examiner misunderstood or mis-applied the rules about how claims are supposed to relate to statute, disclosure, and prior art, or if well-pled claims about procedural defects and/or additional prior art are brought before the court, then the claims can be reshaped to reflect the facts more accurately. If you fear that a competent court will rewrite the claims of any patent to grant a monopoly on the use of the Fourier transform, then you might as well not get out of bed in the morning. > By "covered" I mean "appears in the claims of a patent". > > Am I being overly broad? Perhaps. But considering the lengths Ogg > Vorbis have had to go through, to avoid litigation, I think my approach is > representative of what the MP3 patent holders feel is valid. What lengths are those? They have been careful to avoid some of the more obvious pitfalls by keeping the end-user component (the decoder) pretty generic and hewing closely to the older prior art (such as Ehmer's 1959 papers). They sought opinion of competent counsel on one occasion in the vicinity of the Vorbis 1.0 release. They respond with care and courtesy to inquiries about the relationship between their work and patents that they know to be relevant. So far, that's all good practice in any technology field. On the other hand, their executive team has publicly been less than diplomatic with a major patent holder on at least one occasion (Google it yourself) and they've based their business strategy on the marketing benefits of patent-free-ness rather than the prevailing "have some patents of your own to bring to the table" advice. I admire them and wish them well, and I like to see Debian promote their formats over MP3 and its ilk, but saying they go to great lengths to avoid litigation seems a bit exaggerated unless you know something I don't. > If we're talking about "avoiding distribution of software to avoid potential > but as yet non-existent challenges", we're going to need to be fairly > broad in our consideration of what would be a potential threat. Not so broad as to wildly misrepresent how the system works or to woefully exaggerate what is "covered" in an unnamed patent. I'm not saying you are knowingly doing these things, just that you risk doing so if you repeat things like "the use of time -> frequency domain mapping is ... ostensibly covered by the presumptively valid patents". Cheers, - Michael (IANAL, TINLA)
Re: libdts patent issue?
On 7/19/05, Nathanael Nerode <[EMAIL PROTECTED]> wrote: > Arnaud Engelfriet wrote: > >Here's a claim that would _not_ be maths as such under European law: > >"A method of encrypting a bitstream A using a key B that is the > >same length as A, comprising computing A XOR B". > > That *is* math. If a judge has ruled that it isn't, he doesn't know what the > hell he's talking about. The bitstream A, the key B, and the output are > mathematical objects, and the "method" is a mathematical algorithm. Unless > it involves measuring the local wind velocity or some other non-mathematical > element. I think you're missing Arnoud's point. It's not math, it's an application of math to the problem domain of message encryption. That makes it statutory subject matter for patenting, which math as such is not. And it doesn't need to spell out some particular way of converting back and forth between physical observation and bitstream; the relevant courts (in the US and, AIUI, in Europe) have gotten over their Platonic muddle when it comes to "abstract ideas" vs. "processes" and "machines", and focus instead on the requirement that the invention solve a practical problem. > Everything I said remains true. If a judge really has ruled that that isn't a > mathematical method, then there is indeed caselaw which is wrong as a matter > of fact. Which would suck, but there you are. Case law isn't dispositive in Arnoud's system, and where it is it is only dispositive on points of law, not points of fact. Appeals judges in the US have the discretion to review factual determinations only under a "clear error" standard, and even that is constitutionally denied them with respect to jury rulings -- but in any case that "clear error" relates only to the facts in the court record of that trial and no prior case or external knowledge is supposed to be applied. A case could get the facts completely wrong and yet be an excellent precedent on a point of law. Cheers, - Michael (IANAL, TINLA)
Re: RFS: libopenspc -- library for playing SPC files
On 7/18/05, Ryan Schultz <[EMAIL PROTECTED]> wrote: > On Monday 18 July 2005 11:12 pm, you wrote: > > >FWIW, I would not touch SNEeSe or any fragment derived from it with a > > >ten-foot pole unless they can tell you where sneese.dat came from and > > >what's in it. > > > > Well file(1) said it is an allegro datafile, so I apt-get'ed liballegro-dev > > and try extracting it using 'dat -x SNEESE.DAT *'. > > It contains two images. One is the startup screen the other is the image of > > a joypad used presumably in keyboard setup. > > > > Ryan, unless there are other legal issues I think it is safe to proceed. > > (resending to the lists, whoops) > > Yes, just a few hours ago I got a response from upstream saying the same > thing, using almost exactly the same process too :- ) Not sure how some > images got confused with a core from another emulator. I'm delighted to have been wrong. :-) Which is not to say that there mightn't be other legal issues with SNEeSe; but that's true of any work of authorship, especially those created by reverse engineering, and Debian tends to leave the sanity checks up to the maintainer and ftpmasters. The mere fact that is a game system emulator presents no legal obstacle, and other spot-checks within the code (the current version and v0.16f, apparently the last released by the original author) are reassuring. You might try to establish a relationship with current SNEeSe upstream so you don't have to maintain your own fork of the sound library alone. Cheers, - Michael (IANAL, TINLA)
Re: Public Domain and Packaging
On 7/18/05, Sean Kellogg <[EMAIL PROTECTED]> wrote: > Sigh. The original paragraph had a little parenthetical note about how some > software is not actually copyrighted. In addition to U.S. Government works, > software that does not comprise expression is also non-copyrighted, as was > discussed in the Lexmark case (more famously known for limiting the extent of > the DMCA). I foolishly took that note out because I hoped people would grant > a bit of wiggle room so that I could get straight to the posters question. And in fact the US Government is not prohibited from seeking to register and enforce copyrights abroad. See Florian's citation from the House Report in http://lists.debian.org/debian-legal/2005/04/msg00169.html and my discussion at http://lists.debian.org/debian-legal/2005/06/msg2.html of whether the US Government could copyright its works in, say, Italy. IANAL, TINLA. > Are you certain? Obviously I can chose not to enforce my monopoly... but I > don't see why the government cannot force me to have one. I have a whole > host of rights under Tort law that I think are really extreme (like... if > you give me a pat on the back and I haven't given you permission, I have a > suit. Damages might be non-existent, but you have still violated my rights). > Even though the rights are extreme, I cannot say that I don't have them... I > can only chose not to enforce them. Precisely. But you can issue a binding promise not to attempt to enforce a given right in court, subject to limitations in statute and common law which may vary by subject matter. The vehicle for such a promise is called ... wait for it ... a contract. And as copyright infringement is a statutory tort, it is no surprise that copyright license is, always and only, a term in a contract. > As for whether disclaiming is a better route to the Public Domain than an > explicit license is... well, something that I think will have to be resolved > by a judge someday, because the arguments on both side are plentiful. But > laches... you know, laches is a strange doctrine that is perhaps not the > best doctrine to wave around in the IP world. I've heard it invoked, but its > not the kind of thing I'd want to hang my hat on. Basically, do you want your licensees to have a real license agreement to work with, or do you want them to be stuck with some lame equitable estoppel argument based on a unilateral declaration of intent? Keep in mind that, when ongoing forbearance is needed and there is a serious defect in contract formation, "reliance to one's detriment" will only save you insofar as you _have_ relied to your detriment prior to the attempted revocation of grant and it really _would_ be an undue burden to cease and desist. AIUI neither one will give you an escape clause from statutory limits on what promises can be held against a copyright holder (such as the 17 USC 203 termination language). Note, however, that one of the consequences of treating a copyright as intangible property is that _ownership_ of a copyright can be given as a gift with no need for continuing performance and hence no possibility of revocation (except if fraudulently induced, etc.). This isn't quite bulletproof; the statutory termination clause also applies to assignments; but otherwise it can be used to construct a pretty thorough self-straitjacket, at a non-trivial cost in money and hassle. Does it _matter_ to you that the world know it's safe to treat your work as public domain? Charter a non-profit trust to hold copyrights on the public's behalf, write it into the charter that it will never seek to enforce a copyright it holds, fund a trusteeship annuity with the full-service bank of your choice, assign the trust your copyright, reaffirm the assignation in your will. Done, except for the loophole in the termination loophole: you can't be prevented from changing your will to remove the reaffirmation, leaving your personal heirs with the termination interest. To go any farther, you need to set it up so that your non-profit uses your own money to hire you to do the work. Sound absurd yet? I for one would just as soon live under a legal system where that sort of sham exchange is discouraged. The cult leaders and rip-off artists out there will _always_ be better than the mere altruists at designing dodges around legal limits on how badly one can screw oneself by accepting an unwise contract. As for laches, I agree 100% that it is not to be relied on as a defense against a sincere plaintiff. It's basically an escape clause for judges faced with plaintiffs who are trying to game the legal system and its potential for near-infinite delay, thereby parlaying an opponent's peccadillo into a huge windfall. Cheers, - Michael (IANAL, TINLA)
Re: libdts patent issue?
Summary: it looks to me like current US and European law on the patentability of math, software, and business methods are already very, very closely aligned. Gripe, if you like, about the USPTO's ignorance of the prior art in software-intensive fields, and about the unholy alliance between patent agents with big thesauruses and corporate assignees who are more interested in obtaining ammunition for FUD than an accurate statement of the extent of the novelty in their "invention". But don't blame Congress or the Federal Circuit, and don't believe everything you read in the funny papers. IANAL, TINLA. On 7/17/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: > As such. Art. 52(3) EPC. It's actually easier to make sure you > don't claim math as such than software as such. Just state > a practical application in the claim. > > Here's a claim that would _not_ be maths as such under European law: > "A method of encrypting a bitstream A using a key B that is the > same length as A, comprising computing A XOR B". > > Of course this method is long known, but that's question number two. That is precisely the distinction applied under current law in the US as I understand it (IANAL). The latest word on the topic appears to be AT&T Corp. V. Excel Comm. Inc. [50 USPQ2d 1447, 1452 (Fed. Cir. 1999)] at http://caselaw.lp.findlaw.com/data2/circs/Fed/981338v2.html . AT&T had patented a method of identifying whether both ends of a long distance call were in the same network that used simple Boolean algebra. The district court invalidated the patent on the grounds that it was not statutory subject matter, for lack of any "physical limitations" (as required under the older Freeman-Walter-Abele test). Judge Plager's appellate opinion points out that, subsequent to "In re Alappat" (a 1994 decision of the Federal Circuit en banc), it applies a "useful, concrete, tangible result" test instead: "our inquiry here focuses on whether the mathematical algorithm is applied in a practical manner to produce a useful result." The circuit court reversed and remanded, with a reminder that "the ultimate validity of these claims depends upon their satisfying the other requirements for patentability such as those set forth in 35 U.S.C. 102, 103, and 112" -- and sure enough, on remand the patent was invalidated for the right reasons, anticipation and obviousness. > I occasionally see courts dealing with the computer program > exception, but I've never seen caselaw about maths as such. > Probably because me and my colleagues know that you must > claim a practical application of the mathematics, and fortunately > that's usually easy. And it limits the scope of the monopoly granted to the cited application(s). US Patent law appears to apply a criterion not dissimilar from the copyright law "doctrine of merger" -- the Supreme Court, in Diamond v. Diehr [450 U.S. at 175, 209 USPQ 1 (1981)], confirmed that "abstract ideas" are excluded from patentability and hence any "invention" which constitutes an obvious application of an abstract idea is denied patent protection. I think it's fair to say that an abstract idea in the form of an algorithm, "applied" to the making of a "machine" that executes it (those absurd "register means", "processor means", and "storage means" of the 80's and 90's), isn't really "applied" yet. It becomes patentable subject matter when it is applied to a concrete problem domain in which that algorithm is not an obvious solution and produces a useful result; and it doesn't really matter whether it can be built with commodity hardware or has to be realized as an ASIC to be commercially competitive. Hence it is essentially also true in the US that software is not patentable "as such", only its application to a concrete problem domain. The fact that this distinction is widely misunderstood or misrepresented (IMHO, IANAL) by commentators, especially those with a nest to feather or an axe to grind, is not the Federal Circuit's fault. The USPTO isn't helping much, as they haven't fully understood this opinion either as far as I am concerned. See discussion of the continuing relevance of the Koo patent case http://www.uspto.gov/web/menu/pbmethod/trangmaterials.ppt (Google will convert it to HTML for you). The "storage in computer-readable memory" shibboleth from the mid-90's had to do with uncertainty about whether "concrete", where signals were concerned, meant "must be a machine instead of a process" (the claim formulas are different in USPTO guidance), and AFAICT this has also been superseded by AT&T v. Excel. > Try it. I'm able to kill business methods[1], but I would not > advise my client to oppose a European patent on the ground that > it's a computer program as such. Not even if I had Knuth as > expert witness. > > [1] See the lowermost example on my webpage > http://www.iusmentis.com/patents/businessmethods/epoexamples/ Note that the relevant decision in the US, State Street v. Signature ( http://laws.f
Re: MP3 decoder packaged with XMMS
On 7/18/05, Raul Miller <[EMAIL PROTECTED]> wrote: > Are you suggesting that the use of time -> frequency domain mapping > is not ostensibly covered by the presumptively valid patents? If you want to know what I am suggesting, with regard to a particular patent from the Fraunhofer suite (which I have looked at _very_ quickly and remember that in any case I am not qualified to judge), read http://lists.debian.org/debian-legal/2005/07/msg00141.html . I do not submit that I have gotten the _presumptive_ scope of the patent straight, in terms of the rules for how you apply dependent vs. independent claims, since in any case the patent was granted by administrative staff who were woefully confused at the time by both the state of the appellate law and the state of the prior art. AIUI a court of fact has the discretion to more or less completely rewrite the claims of a patent when it is litigated, based on the complete record of what was reduced to practice when by both the inventor and other workers in the field -- although the effect is almost always to retain the idiom of the patent's claims, striking some clauses and merging others to form narrower independent clauses. When I find a reasonably "classic" and comprehensible opinion at district court level I'll cite it. I will say this, though: all patent agents and attorneys are expected to be well versed in the procedures for prosecuting a patent application through the examination system and in the administrative standards patent examiners apply. They generally attempt to establish the widest possible perimeter as well as a set of more or less defensible fall-back positions. There may well be many patent attorneys that also attempt to explain to their clients what is likely to survive after a patent's claims have been evaluated by a court with the assistance of an interested competitor, competent expert witnesses, and a budget three to five orders of magnitude higher than the examiner's -- but they do so under the seal of attorney-client privilege. > Or, perhaps that all other such techniques which have been in use > for quite some time (such as favoring frequencies which the human > ear is sensitive to) are all not ostensibly covered by the presumptively > valid patents? The US number for the patent commonly cited as "the MP3 patent" is 5,579,430, which I have not yet examined closely. But if 5,924,060 is any indication, Karlheinz Brandenburg and his colleagues informed the patent examiners of the existence in the prior art of telephony-oriented audio compression techniques (such as ADPCM) which model a waveform in the time domain and are quite poorly suited to the signal content of recorded music and the way that the ear and brain process it, as well as closer relatives like Zelenski's "Adaptive Transform Coding". They didn't claim to have invented the DCT or its application to recorded sound. They did claim to have reduced the quantization of DCT coefficients to practice according to at least one formula that is both psycho-acoustically and computationally efficient. I don't know enough about the state of the prior art at the time of "foreign appl. No. P3629434.9, filed Aug. 29, 1986" (the basis for priority of 5,924,060) to say whether Herr Doktor Brandenburg was correct in his belief that this invention met the "non-obvious" part of the standard or that it deserved the breadth of claims stated (note that the German patent office granted it first). Note, in particular, his acknowledgment that it differs from ATC principally in the use of a single quantization level across the spectrum in a given block, which is then iteratively adjusted to fit within a bit-rate limit. But to me it sounds like patentable subject matter in all the world's major patent systems, and you'd have to fight it by focusing on the prior art and the scope of the claims rather than shout "mathematical method! software patent!" Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
On 7/18/05, Steve Langasek <[EMAIL PROTECTED]> wrote: [consistently sane and well-judged things about MP3 and patents generally] It does, however, strike me that it would be prudent for someone appropriately qualified (as I am not) to look closely at the claims of US #5,579,430 and, generally, the history of the "OCF process" described in WO 88/01811. (That's a published international patent application under the Patent Cooperation Treaty, and as I understand it a practitioner can get its full text including diagrams from several sources including Dialog.) I haven't tracked that application down; but a competent-looking survey of the prior art from an interested observer aware of that document may be found at http://gauss.ffii.org/PatentView/EP511692 . Basically, Debian is distributing close cousins to things whose patent infringement status has been brought into question by attempts to enforce those patents on other distributors. I have no idea at what point Debian has "actual notice" but I would think that it likely that a "duty of due care" has been triggered under at least one of the world's legal systems. None of the MP3 issues -- even encoders, if you ask me -- seems to be an open-and-shut case of "drop it unless competent counsel is optimistic" (which I would say that libdts is), but IMHO the question warrants some competent attention. Personally, I would kind of like to see a negotiated outcome with the current Thomson people, whose public record appears reasonable to me. But as it seems very unlikely to me that Debian can scrape together enough good will towards an 3vi1 pat3nt h01d3r to take an olive branch if it were offered with respect to (say) LAME and ffmpeg, let me at least suggest obtaining opinion of competent counsel. Cheers, - Michael (IANADD, IANAL, TINLA, and I don't have any affiliation with Dolby or Fraunhofer)
Re: libdts patent issue?
On 7/18/05, Humberto Massa Guimarães <[EMAIL PROTECTED]> wrote: > Ditto, for Brasil. Software patents are explicitly excluded in our > Industrial Property (= Patents + Trademarks) Act (Law 9279/96), > section 10, V: " [snip] > Obviously, only inventions (or utility models) can be patented. Now that Arnoud has explained how the "no patents on mathematics, software, or business methods" premise works in Europe -- indistinguishable in my eyes from how it works under current law in the US, except that EPO's examiners may or may not be on average more competent, less captured, or less overwhelmed than the USPTO's -- I would not be at all surprised if it works similarly under the statute you quote. Humberto, can you give me some kind of pointer to the primary literature (i. e., what judges cite in their opinions as interpretive guidance) in your legal system? Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On 7/18/05, Raul Miller <[EMAIL PROTECTED]> wrote: > On 7/18/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > > On 7/18/05, Raul Miller <[EMAIL PROTECTED]> wrote: > > > Are you suggesting that the use of time -> frequency domain mapping > > > is not ostensibly covered by the presumptively valid patents? > > > > If you want to know what I am suggesting, with regard to a particular > > patent from the Fraunhofer suite (which I have looked at _very_ > > quickly and remember that in any case I am not qualified to judge), > > read http://lists.debian.org/debian-legal/2005/07/msg00141.html . > > This seems tangential, and does not answer my question. If the question is, "is it remotely plausible that Fraunhofer claims to have patented the Discrete Cosine Transform or its application to music compression", the answer is "no". How's that? > > > Or, perhaps that all other such techniques which have been in use > > > for quite some time (such as favoring frequencies which the human > > > ear is sensitive to) are all not ostensibly covered by the presumptively > > > valid patents? > > [more non-answer elided.] > > If you don't have a simple answer for these questions, please don't > imply that you have. Where, exactly, did I imply that? Either you're using the word "covered" in some way that has nothing to do with the claimed scope of the patent (in which case you are IMHO engaging in empty rhetoric), or you have been grossly misinformed as to the claimed scope of the Fraunhofer patents (and others claimed by reputable players in multimedia compression). I'm guessing both. Cheers, - Michael
Re: libdts patent issue?
On 7/16/05, Diego Biurrun <[EMAIL PROTECTED]> wrote: > According to Mr Ravicher the odds are not that bad. Why give in before > the battle even started? What if there is no problem? Software will not > remain free if you don't defend it and you will not keep your freedom > if you are not willing to fight for it. But if you want to give away > your freedoms beforehand just in case someone might want to take them > from you... Let me quote you part of the "Caveat" from the research project ( http://www.patstats.org/editors_page.html ) from which Mr. Ravicher said he got his numbers: While we believe it is important for actual and potential litigants and their attorneys to know what has been happening recently in the courts on various patent law points, the value of statistics can easily be exaggerated. We caution that any set of statistics should be used with care, in that it is not always apparent what the data may signify. Shifting figures for court results on a particular issue may reflect not so much a predisposition of a court as they do variations in the strengths of positions that litigants bring to that court. For example, if patentees are more often willing to litigate the on-sale issue on weaker facts than at some previous time, we should expect to see a decrease in the percentage of times the patentee prevails on that issue, regardless of any judicial attitudes on the subject. If defendants become more selective in their use of the inequitable conduct defense, we should expect to see a rise in their success rate on that point, again independent of any shift in judicial attitude. Moreover, since very few issued patents are actually litigated to judgment, the reported statistics do not necessarily reflect on the overall quality of patents being issued by the Patent and Trademark Office, but at most only the quality of those chosen by litigants to be asserted in lawsuits. That's not my idea of evidence that it's a dice roll, nor is it a set of odds on which to base a large gamble with other people's money -- and by definition such a cavalier attitude does not meet the "duty of due care" even if it is supported by opinion of counsel. Have you _read_ Knorr-Bremse? Do you understand what was at stake and by how much -- or how little -- the Federal Circuit relaxed the "duty of due care" calculation that courts of fact are expected to apply? Do you understand that the Federal Circuit en banc is absolutely the last word on the subject in US law unless overruled by the Supreme Court or by act of Congress? (IANAL, TINLA) You will not "keep your freedom" if you run under a tractor, rob your next-door neighbor in broad daylight, or show up in court in response to a non-frivolous suit using your pet lizard for an attorney, either. In this case, if continued distribution of libdts is a "freedom" that Debian is "willing to fight for", then somebody had better start shelling out for competent counsel and/or making the rounds to find someone to take the case pro bono. Mr. Ravicher and the SFLC appear to be making the latter offer, and I would be very entertained to watch them in action, but AFAIK no one who may feel a need to do so has taken them up on the offer -- not Sam Hocevar, not the ftpmasters, not the DPL, and not the board of SPI. > Please remember that this is my answer to your question of what _I_ would > do, I didn't say what Debian should do. So suppose a buddy of yours goes around handing people, including you and your next door neighbor, bags of Everlasting Gobstoppers -- candies that, in a way, contain their own recipe and never run out. Now Willy Wonka comes to your neighbor's door with his lawyer in tow and says, "actually, those Gobstoppers were stolen from me; here's a certificate issued by the administrative authorities of half a dozen nations, duly constituted by their legislatures in accordance with several centuries of legal precedent, that says so; please flush them down the toilet and we'll call it quits." Your neighbor isn't particularly impressed but his lawyer tells him it's stupid to challenge the validity of that certificate, so the Gobstoppers go to Fish Heaven. You have advertised in a small way that you hand paper bags full of candy, Gobstoppers included, to anyone who wants them. People who trust you sell nice gift boxes with those candy mixes in them for the price of the gift box. There's no hiding your or your distributors' dealings in candy, there's no pretending you didn't see Wonka calling on your neighbor, there's no reason he would smile on your actions and not your neighbor's. The Candy Laws say that, under those circumstances, failing to either quit handing out Gobstoppers or make a reasonably honest _and_competent_ effort to evaluate the legitimacy of Wonka's claim constitutes "willful infringement" and may triple the penalties Wonka can inflict on you in court if you and he can't settle it amicably. Now you're totally opposed to the idea that an
Re: libdts patent issue?
On 7/16/05, Diego Biurrun <[EMAIL PROTECTED]> wrote: > DTS Inc. used a European patent to go after VideoLAN. One with a US equivalent, paint by numbers. Presumably they used its EP number in the C&D to the VideoLAN folks because they're in France. C'est la même chose. > Defend them (in court if necessary). At what odds? Why pick this battle? > I'm not advocating "fingers in ears". I'm fully aware of the problem I > just believe that running away from it is exactly the wrong reaction and > does a disservice to the free software community. Survive to fight another day. If you persist in seeing "software patents" (a false category if I ever heard one) as evil, don't be the means of letting this particular tentacle of evil screw over Debian's CD/DVD distributors if they see fit to respond decently to a quiet, voluntary retreat that reflects the reality upstream. > Let me add that when I speak about fighting software patents I do more > than just talk about the subject. I spent four days on the FFII booth > at CeBIT, I've talked to my representatives in person and on the phone, > I've been in Brussels, etc. But have you _thought_ about the problem? Have you _read_ one? Do you have a sane distinction to propose between "software patents" and everything else, or is this just NIMBYism? I think patenting pure math is just as stupid as you do -- but I can tell pure math from the sort of semi-empirical semi-invention disclosed in, say, US #5,924,060 (one of the Fraunhofer suite, which I half-analyzed in the XMMS/MP3 thread). And I can tell you that many signal electronics patents that don't involve RF and higher frequencies could equally well (if not equally cheaply) be implemented with off-the-shelf A/D - DSP - D/A. Does that make them "software patents"? > As far as you can see, but you are not are not a lawyer and the only > lawyer in the MP3 thread did not agree with your position at all... If you are referring to Mr. Ravicher, he seems to be a decent guy (and vastly more qualified than I) but speaking out of where the sun don't shine insofar as he encourages willful disregard of a presumptively valid patent without benefit of the advice of competent counsel. If SPI (or Debian, to the extent that it legally exists) decides that he or someone else constitutes competent counsel, obtains an opinion on the basis of which they decide to continue the distribution of libdts, and makes some sort of plan for what to do if and when CD/DVD vendors (among others) get C&D letters and come to Debian for advice, that is of course a completely different story. > And which of our two pieces of advice is better for free software in the > long run? IMHO, the one that makes a distinction between free speech and free beer (or free brewing equipment), and doesn't demand that everyone die of thirst because the beer isn't free when there's perfectly good water sitting right next to it. Which one do you think I am describing? > Debian has been distributing libdts for quite some time now without > problems... Let's see, a single upload in February 2004, which appears to have gotten through NEW in March and to have been installed by less than one in 40 popcon users, and never to have been put on a Debian CD/DVD before sarge released. Yeah, that's a basis for a laches defense -- not. > Feel free to point me at a software patent you consider worth its salt. > All the ones I read weren't. It's an inherent problem. Software just > does not work like, e.g. cars. It's much more abstract and much more > complex. While a car has about 1-15000 parts, programs can easily > have ten times that and more, if you consider complete operating systems > or - say - Debian we're talking about several magnitudes of complexity. > So there are many more parts that might be patented and due to the > abstract nature of software it is much harder to tell whether program X > really falls under the scope of patent Y. Did you read the Fraunhofer suite? I haven't looked closely at all of them, but I've seen patents a whole lot more bogus than any of them that have nothing to do with software (and aren't in the "crackpot" category either). Any car made for sale in a developed country in the last five years, anyway, has software in it that is a lot more complex than an MPEG-2 encoder, let alone an MP3 decoder (and yes, I've hacked on both); and the spec for a single overhead cam (metallurgy and machining) probably exceeds the length of that MPEG-2 encoder's source code. Software, my friend, is not rocket science. > This has been explained before by other people, the paper I like best is > "SOFTWARE PATENTS: AN INDUSTRY AT RISK" by The League for Programming > Freedom: > > http://lpf.ai.mit.edu/Patents/industry-at-risk.html Yeah, that would be Moglen and RMS's crowd again. Funny how these monomaniacal, non-reality-based, but strangely compelling (until you pick at them) position papers come from a common source A few concepts
Re: MP3 decoder packaged with XMMS
On 7/16/05, Diego Biurrun <[EMAIL PROTECTED]> wrote: > On Sat, Jul 16, 2005 at 03:09:20AM -0700, Michael K. Edwards wrote: > > > > If Debian and Thomson knock this domino over, someday even DeCSS may > > be blessed by the powers that be. (Though IMHO the only > > non-infringing use it really has is the product mock-up scenario.) > > WTF? How about watching DVDs? That requires, AFAICT, a license for the relevant patents from the relevant patent holders. AFAIK CSS itself isn't patented (or patentable) but the typical license agreement for some bits of the DVD technology suite that are patented is conditioned on respecting the whole scheme of copy protection, CSS included. Don't blame me, I didn't design the system, I don't pull the puppet strings attached to Jack Valenti, I think CSS is ill designed and ill conceived, etc., etc. I'm just telling it like it is. You wanna go up against money and power wielded by very large dinosaurs, have fun -- but don't drag the bloody operating system into the trenches with you, OK? Cheers, - Michael (IANAL, TINLA)
Re: libdts patent issue?
On 7/16/05, Diego Biurrun <[EMAIL PROTECTED]> wrote: > Software patents are not legal in Europe. Period. The European patent > convention from 1972 explicitly excludes software from patentability. > Attempts to pass legislation that would have allowed software to become > patentable have failed. The worst thing we could do now is give in to > the patent scare tactic and stop developing and distributing software > that might infringe patents that might have some validity. Is there no "presumptively valid" standard in any country in Europe -- or does it not apply to patents that actually issue under that country's laws, unless and until they are demonstrated to be invalid in court? Otherwise, if Debian collectively wants to keep distributing libdts in Europe, I think it would be prudent to obtain the advice of competent counsel, which I emphatically am not (and neither AFAIK are you). And for that matter, do you think Debian is magically insulated from US law? Put aside the knee-jerk hostility to the phrase "software patent" for a moment, and ask yourself: what would you do if your assets were on the line? > If DTS Inc. would have prevailed in court is very very questionable. > Regretfully the university hosting libdts and the VideoLAN developers > did not have the motivation, energy and money to fight this out. I've read that thread, including your contributions to it, and it does not surprise me in the least that you are the first to advocate fingers in ears. Which may be the right answer, or may not, depending on factors like whether CD vendors get the C&D letters before Debian does -- making it a little bit socially awkward for Debian to piss away any possible goodwill that might obtain, from the entity which AFAICS has the upper hand under real-world law, some forbearance with respect to copies of Sarge already pressed. > Why stop at libdts anyway? During the course of the discussion we came > up with a lot of MPEG-related patents, so why not remove all multimedia > packages same as Red Hat did? Not a very successful reductio ad absurdum. The scope of patents differs, the declared enforcement intentions differ, the grounds for a laches (unreasonable delay of prosecution) defense are a lot stronger WRT projects that the patent holder has known about for many years, etc., etc. > This is a very slippery slope, if a few software patents get accepted as > valid soon all of main will have to be removed. Yeah, right. The sky is falling. Read a software patent that has withstood close scrutiny sometime; you are likely to find that it contains a non-trivial invention, arrived at after much experimentation, that is not just a matter of natural law -- just like any other patent fit to be granted. The examiners let a lot of crap go by but that's not what drives the patent system, as you can tell by looking at the size of the "expired for non-payment of maintenance fees" list each year. Cheers, - Michael (IANADD, IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
(Just to make it clear: I'm aware that libmad is decode-only and that the evidence is much less strong that MP3 decoding is within the scope of the Fraunhofer patents than that encoding is.) Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On 7/16/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: [snip] >(5) An act which, apart from this subsection, would constitute an >infringement of a patent for an invention shall not do so if - > >(a) it is done privately and for purposes which are not commercial; OK, this makes sense. Probably means I can bake cookies from a patented recipe without infringing the patent as long as I don't turn around and hold a bake sale. My execrable Deutsch is still enough to tell me that German law is similar. > > At least in US copyright law as I understand it (which borrowed the > > term from patent law), "contributory infringement" can't be found > > where there is no direct infringement to be contributed to, nor even > > where there are substantial non-infringing uses of the product and the > > distributor makes a good-faith attempt to discourage, and avoid > > deriving substantial revenues from, infringing uses. > > Right. In most patent laws, the act of distribution of a product > is by itself a direct infringement. Even when the distribution > is intended for individuals that want to privately use the product. > So I don't think this is going to help you much. Right, that's the same as US law AIUI. > This of course presumes that a sequence of bits is a "product" in > patent law. I'm not aware of any caselaw either way. But it does > seem likey that this would be covered by the "essential element" > clause in patent law. See e.g. article 60(2) and (3) UK Patent Act: [snip] It would clearly be a misreading of the legislative intent to say that neither manufacturer nor distributor nor end user needs to obtain a patent license just because the end user isn't making "commercial" use of the product. > One could argue that "other person entitled to work the > invention" can mean "a person performing the acts privately > and for purposes which are not commercial". I'd have to check > with a UK colleague whether that's accurate. Probably not, if the only basis for that entitlement is the statutory out provided in 60 (5) (a). But if Thomson actually were to express the intention of exempting private users of an open source implementation from the need for a patent license ever to have been obtained for _their_copy_ -- i. e., if in Thomson's official view their usage (transcoding other audio formats to and from MP3s for personal use) is such that neither upstream, nor packager, nor end user needs to pay a per-unit fee for that copy -- that's a very different ballgame. (For DFSG purposes, it would of course also be necessary to verify that no per-implementation fee was demanded if one acts in good faith to communicate the limits of this "safety zone" to recipients, lest downstream developers should be obligated to pay a lump sum when renaming the package or merging it into something larger.) I'm not saying that I think that Thomson is offering such a deal, but I'm not saying they aren't (or haven't already) either. My impression is that they are focusing on extracting revenues in return for the mastering of MP3s for purposes of commercial distribution. It's a fine point and I know there are some DDs who won't look at it this way, but if the software authors aren't attempting to discriminate among fields of endeavor -- only disclaiming responsibility for obtaining patent rights from a third party on anyone's behalf, and advising recipients that upstream focuses on the "substantial non-infringing uses" (personal use and use by patent licensees) that protect upstream and distributor from allegations of infringement -- then I think there's at least a case for calling it DFSG-free. I care about this principally because I'd like to see a model "square deal" that qualifies as free speech whether or not it's free beer. Commercial, end-user-oriented MP3 encoders, hardware and software, compete with one another and with other formats anyway; will they really be all that pissed at Thomson for giving the green light to LAME and its like? As psycho-acoustic research tools, toys for the ABXers at Hydrogenaudio, and building blocks for product mock-ups under the umbrella of a patent sharing agreement, LAME and libmad and ffmpeg and so forth are interesting and useful without cutting unduly into the revenue stream that amortizes off the cost of research. If Debian and Thomson knock this domino over, someday even DeCSS may be blessed by the powers that be. (Though IMHO the only non-infringing use it really has is the product mock-up scenario.) Cheers, - Michael (IANADD, IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
On 7/16/05, Arnoud Engelfriet <[EMAIL PROTECTED]> wrote: > Thomson's answer wasn't particularly surprising, since European > patent law already contains an exemption for personal use of > patented technology. Besides, there's no money to be gained from > sueing individuals that use a patented technology privately. Can you point me to that statute? Is it a "hobbyist, design it yourself, infringe unknowingly" sort of thing, and if not, where is the dividing line between a precise description of the ideas contained in a patent and one that is so precise that it happens to be an executable implementation? > I don't see where you got the "distributors" from, since the > note only speaks of "personal use". At least in US copyright law as I understand it (which borrowed the term from patent law), "contributory infringement" can't be found where there is no direct infringement to be contributed to, nor even where there are substantial non-infringing uses of the product and the distributor makes a good-faith attempt to discourage, and avoid deriving substantial revenues from, infringing uses. It strikes me that personal use of, say, a Debian package of LAME would almost certainly dominate commercial use, and that Debian could with a bit of care avoid both the fact and the appearance of deriving substantial benefit from infringing uses. If Thomson were effectively estopped from arguing that personal use was unlicensed and infringing (which would presumably take a bit more official statement on their part, but not that much more official), then Debian and its derivatives would effectively have their blessing to distribute open-source MP3 encoders -- as long as we communicate clearly to their recipients that we do not convey any patent rights to them and they are protected patent-wise by nothing other than an estoppel theory with limited scope. Whether all this is DFSG-free is of course a whole 'nother question, but it's always interesting to know what really is and isn't on offer from a rights holder. If you think about it, a text editor can also be used to do things that violate a third party's IP rights of one kind or another; but that doesn't make text editors non-DFSG-free. Bit of a stretch, I know -- but how about BitTorrent clients, given what seems to be the numerically dominant traffic over that protocol? (Numerical dominance alone doesn't prove anything; IIRC Sony's own study of usage habits in the original VCR case suggested that only 20% of end user VCR usage was non-copyright-infringing.) Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
I wrote: > Presumably you are also aware of patents 5,341,457 and 5,627,938, > which Lucent has been seeking to enforce against Dolby AC-3. As your > encoder appears to use Ehmer's tone masking techniques, which are also > cited in the AC-3 standard definition, ... I am of course aware that Ehmer's techniques were published in 1959; but the combination in the claims of the '457 patent is presumptively a valid invention, and I don't grok either it or psy.c well enough to be able to tell whether they coincide. It seems particularly timely to raise the issue since Dolby is quite capable of settling out of court now that they have gotten what they wanted (declarative relief WRT AC-3 and Lucent's patents), and if Xiph.org or someone else wants to intervene to demand resolution of the question of the Lucent patents' validity then the time is presumably now. Cheers, - Michael
libdts patent issue?
This came up in the course of a curiosity-driven review of the patent status of various audio codecs, and also in a recent MPlayer thread. It would probably be wise not to wait for a cease-and-desist letter before quietly discontinuing the distribution of libdts. See http://developers.videolan.org/libdca.html and http://www.via.ecp.fr/via/ml/vlc-devel/2005-04/msg00230.html . Might want to give derivatives a heads-up too. I don't say I like it, but it's probably the wrong battlefield on which to fight the "software patent" wars. The patent (US #5,956,674, EP 864 146) is "presumptively valid" to within the relevant legal standard, we already collectively have knowledge of it and can't really pretend otherwise given things that are already in the mailing list archives, and AFAICT (IANAL, TINLA) it can't possibly describe anything other than the tweak of a hack on a kludge that is the DTS format. Contrariwise, given the thicket of claims (49 in the US version, which is a monstrous 261K in HTML), it strikes me as quite impossible to determine whether it is 100% unoriginal without litigation. If it is important to enough DD's to do something other than drop it and give its derivatives and CD/DVD distributors a heads-up (IANADD and it's not actually my problem), then SPI and/or one of its EU sister organizations had better obtain opinion of competent counsel. IANAL, TINLA. FWIW it appears that Philips has also stopped supporting DTS in its DVD-R/RW drives: http://www.licensing.philips.com/licensees/patent/dvdrw/documents760.html . Cheers, - Michael
Re: MP3 decoder packaged with XMMS
Presumably you are also aware of patents 5,341,457 and 5,627,938, which Lucent has been seeking to enforce against Dolby AC-3. As your encoder appears to use Ehmer's tone masking techniques, which are also cited in the AC-3 standard definition, that litigation may be of interest -- particularly as Dolby obtained in April a summary judgment of non-infringement and there is a real possibility that Lucent's patents will be invalidated altogether if the remainder of the case goes to trial as scheduled in September. Although your psy.c is a bit opaque and I have given these Lucent patents only the briefest of glances, I would say that the '457 patent disclosure resembles the Vorbis encoder more closely than anything else I have seen in the literature. No suggestion that you infringe is implied; I'm just trying to get a handle on how psy.c works and the patent database is the best hook into the primary literature that I am currently holding. I haven't identified which, if any, patents cover Dolby AC-3 qua AC-3 (that's a Dolby trademark, as is Dolby Digital 5.1; the generic name is "ATSC Standard A/52"). There seems to be a relevant patent pool in DVD space (in which Dolby participates, to the extent of receiving a small royalty on AC-3 encoded DVDs, but may not have contributed any patents AFAICT). There is an interesting list in Appendix A of http://contracts.onecle.com/intervideo/dolby.lic.1999.03.04.shtml but I haven't ground through it and probably won't. The "cease and desist" letter at http://www4.netbsd.org/Letters/20010803-dolby.html looks to me to be "actual notice" of nothing whatsoever. Given that Dolby approaches "violators" even more prejudicially than Thomson does (or used to?), somehow I suspect that if Dolby had a leg to stand on other than their trademarks then there would be some record of their citing a specific patent against A52dec and/or FFmpeg (which remain on SourceForge). IANAL, TINLA, YMMV. I have, however, tracked down the principal DTS patent (#5,956,674) claimed against VideoLan's libdca; but it has such a thicket of claims that I cannot begin to say what might or might not infringe it other than an implementation of DTS itself. I doubt they would bother you, though; their format is wildly different (mixed VQ and ADPCM, specialized subframes to massage transients away, "signal-to-mask ratios"), and it has the general air of a tweak of a hack to a kludge. So, by reputation, does AC-3; so unless Dolby holds something pretty general (which would surprise me), it also seems unlikely to threaten Vorbis unless you know something I don't. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
I wrote: > By the way, where did you get the numbers in floor1_inverse_dB_table? > If that's an important part of the psycho-acoustic magic, its > provenance needs documenting, or it could get ugly in a court of fact > when an "expert witness" lies with numbers. The general public can't > tell what the significance of the difference between two > exponential-ish curves may be, and you don't have the say-so of a > patent examiner (for what that's worth) that your methodology does or > doesn't differ in some way from the prior art as of date X. Nevermind. It's a pure exponential: http://trac.xiph.org/cgi-bin/trac.cgi/ticket/323 . Cheers, - Michael
Re: MP3 decoder packaged with XMMS
On 7/15/05, Michael K. Edwards <[EMAIL PROTECTED]> wrote: > Can you point me to a brief but technical summary of some of the Ogg > Vorbis codecs? I would be curious to compare them against the MP3 > techniques, about which I know at least a little bit. I am _not_ trying to create trouble here; anything I can figure out in a couple hours of Googling is probably already on your (and your potential opponents') radar. If anything, this illustrates how difficult it can be to sustain work in this space without documenting the things you have done that you think are original in the form of patent applications, so you have something to bring to the table when it's time to negotiate an industry standard and form a patent pool. So I started by reading the Vorbis I spec, and it looks to me (on a very quick reading, IANAL, TINLA, little green men squeezed this through a pinhole in my tinfoil hat) like your decoder at least is clean WRT Fraunhofer -- at the risk of pushing the possibility of patent infringement onto the data stream itself. It's a bit like selling silicon which doesn't become patent-infringing until the firmware is loaded -- which is a perfectly good business strategy, followed by many silicon and board-level vendors in A/V space. Specifically, putting the codebooks in the header is clever, and I'm guessing that Floor 1 gets you out of the trouble that Floor 0 might have had any patent that specifies the Bark scale explicitly. There are always Lucent's patents to worry about (#5790759, #5285498, EP1160770, ... -- I can't believe they let this kind of crap through the system), and you might want to scan the rest of http://gauss.ffii.org/Search/All/IPC/G10L19/02 (maybe even all of bloody G10L19), but I'm probably teaching my grandmother to suck eggs. (If I were designing the codebook format, I might go for stratified trees with room for a heap index so that I could do stabbing queries and bulk insertion efficiently -- but that's really for streaming applications, and matters more when you have hardware on the back end that can only handle a minimal interlock during partial codebook updates. Agile codebook switching might also help compete with G.729E and modern equivalents. Xiph.org is welcome to reduce that idea to practice and patent it, doing whatever they like with the economic rights, as long as I am properly credited as co-inventor. :-) Note that K. Brandenburg, co-author of the 1992 paper you cite as the source of the MDCT, is almost certainly the same Karlheinz Brandenburg who filed #5040217 (assigned to AT&T Bell Labs, now presumably held by Lucent as well). A forward citation search for that patent number might be in order; you might particularly be interested in #6,704,705 (assigned to Nortel). By the way, where did you get the numbers in floor1_inverse_dB_table? If that's an important part of the psycho-acoustic magic, its provenance needs documenting, or it could get ugly in a court of fact when an "expert witness" lies with numbers. The general public can't tell what the significance of the difference between two exponential-ish curves may be, and you don't have the say-so of a patent examiner (for what that's worth) that your methodology does or doesn't differ in some way from the prior art as of date X. That's about all I can glean from the Vorbis I spec without long, tedious grinding through the patent databases, which I'm not qualified to do anyway. Now, is there any documentation about how the encoder works? How do you go about tracking whose chocolate gets into your peanut butter as people refine the encoding techniques? Cheers, - Michael (IANAL, TINLA, I know jack about patents except what I learned when filing one -- totally unrelated to audio -- with the help of a patent agent (now attorney) whom I respect a great deal.)
Re: MP3 decoder packaged with XMMS
On 7/15/05, Rich Walker <[EMAIL PROTECTED]> wrote: > 2. why was the opinion not to be divulged publically? Whether or not the attorney requests that the opinion not be made public, it tends to be wise to preserve attorney-client privilege at the heart of a matter that may be litigated someday -- especially now that (per Knorr-Bremse) no adverse inference may be drawn from a refusal to disclose the contents of such an opinion during discovery. Cheers, - Michael (IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
Thanks very much to Mr. Moffitt for weighing in! On 7/15/05, Jack Moffitt <[EMAIL PROTECTED]> wrote: > Just a quick note on this thread. Time seems to have erased the memory > of Thompson going after everyone. 8hz-enc, bladeenc, lame, and many > other projects have shut down (from cease and desist letters) or refuse > to distribute binaries because the MP3 suite of patents _is_ actively > enforced. Try going out and finding unlicensed implementations outside > the Free Software and Open Source worlds. That out of the way, I will > address the issues raised below. That's entirely consistent with my (much less informed) understanding of the history. It would be very interesting to know whether the statement at http://ballsome.org/index.php/news/100 reflects their present policy, and if so whether it would offer some degree of equitable-estoppel-based safe harbor for distributors who can demonstrate substantial non-infringing uses as a defense against contributory infringement. There's no shame, and potentially much advantage, in providing cross-conversion tools between a genuinely free format and the current market leader. > I don't believe there are wavelet transforms in Ogg Vorbis. These are > planned for some future incompatible update. Can you point me to a brief but technical summary of some of the Ogg Vorbis codecs? I would be curious to compare them against the MP3 techniques, about which I know at least a little bit. > Before we released Ogg Vorbis beta 1, we did indeed hire a patent > specializing attorney to go over the MP3 suite of patents. He only > thought it necessary to issue a formal opinion on a single one of these > patents. We were advised by him, and other attorney's, that the > specifics of this opinion could not be divulged publically. Since that > time (around 2000,2001 I believe), I believe several companies have also > had lawyers look over this issue. RedHat ships Ogg Vorbis, and they are > obviously aware of these patent problems due to their removal of MP3 > related software, so I assume they made this decision based on sound > legal advice. I don't believe anyone is going to publically share their > findings any more than we have for the same reasons our lawyer original > gave. That's understandable. Any chance you could at least identify which patent warranted a formal opinion? > New patents come up all the time. No one can afford to keep track of > them all, or to have attorney's issue legal opinions on anything > related. We have done informal, but educated, analysis on many patents > that others have brought to our attention, and never found anything > worth troubling a lawyer over. Also, we originally intended the > patent-free part of our software, so we based many algorithms on old, > widely published results, and avoided many methods that would lead to > patent trouble. Can you enlarge at all on your approach to "duty of due care"? I have only recently run across Knorr-Bremse and am ignorant of how this works in practice when the patents are flying thick and fast. > Many large corporations ship Ogg Vorbis with their products, including > Microsoft, RealNetworks, EA Games, and many more. There are plenty of > billion dollar companies to go after for infringement, should > infringement actually be occuring due to Ogg Vorbis. The fact the none > of these companies has been, to anyone's knowledge, threatened with > litigation over related patents speaks volumes. We've been around for 5 > years, and we've taken this issue seriously the entire time. Absolutely it speaks volumes on the risk management front. But Microsoft, for instance, pays out rather frequently to settle IP suits, sometimes for reasons only peripherally related to their validity; and I don't think watching what the big boys do counts as due care. > What I have said above we thought was common knowledge. There are > probably very few Free Software projects that have dealt with this issue > as seriously as Xiph.org. That's why I put you to the trouble of commenting; I thought debian-legal needed a little injection of educated opinion from someone with a first-hand clue. Common knowledge seems to fade as rapidly as common sense. > One last note: I am still on the board of the Xiph.org Foundation, but > Monty <[EMAIL PROTECTED]> is currently the Executive Director. Tom > Rosedale is our current legal counsel, but was not the attorney who did > the patent review, nor was he actively involved with us at the time the > patent review was done. I hope I haven't put you to any trouble or expense by copying Mr. Rosedale; some people prefer to have their legal counsel copied on such issues when they list contact information on a page like http://www.xiph.org/contact/ . I've added Mr. Montgomery on this follow-up; please drop Mr. Rosedale if it's not necessary for him to be involved. > Feel free to continue copying me on the discussion. As a fellow debian > developer, I'm quite int
Re: RFS: libopenspc -- library for playing SPC files
(Follow-ups to debian-legal, please.)
FWIW, I would not touch SNEeSe or any fragment derived from it with a
ten-foot pole unless they can tell you where sneese.dat came from and
what's in it. My guess is that it is an infringing copy of the
contents of an SNES64 ROM and that the history of its inclusion on
SNEeSe taints the legality of the whole code base ("fruits of the
crime" and all that). IANAL, TINLA.
Cheers,
- Michael
Re: MP3 decoder packaged with XMMS
I wrote: > Personally, I would be little more inclined to rely on the continued > availability of royalty-free open-source Ogg/Vorbis encoders than > their MP3 equivalents without some indication that someone competent > is on record as to the basis for a reasonable belief that they do not > infringe the Fraunhofer suite. In case it seemed otherwise: I am very much pro-Ogg/Vorbis. I am not particularly pro-software-patents but I am not under the illusion that the MP3 patents have less traction in the world's major legal systems than numerous others which have been litigated successfully by their holders. I have recently become aware of the details of the "duty of due care" standard apparently last modified by the Federal Circuit court in Knorr-Bremse v. Dana (2004), and while I am not aware of any personal risk to myself, it would be nice to know what there is to know about the state of the state, so to speak. Cheers, - Michael (IANAL, TINLA)
Re: Correct license
On 7/15/05, Florian Weimer <[EMAIL PROTECTED]> wrote: > This clause resembles the extended copyleft provisions of the Affero > General Public License. Has debian-legal reached consensus on that > license? For my own part, two words: Idiotic. Non-free. (Gratuitously non-GPL-compatible, discriminates against embedded developers, effectively ties the program to today's network plumbing and demands that users open themselves wide to DDoS attacks.) Cheers, - Michael (IANADD, IANAL, TINLA)
Re: MP3 decoder packaged with XMMS
Oh, and by the way: get the letter quoted at http://ballsome.org/index.php/news/100 on corporate letterhead, and Debian and most of its users are probably (IMHO, IANAL, TINLA) golden WRT both MP3 encoding and decoding, anywhere that "reliance to one's detriment" and "substantial non-infringing use" have any meaning. Are we all so blinded by anti-patent ideology that we don't bother to do trivial homework like writing to the patent holder for clarification? Cheers, - Michael
