[Upd-discuss] a longer term strategy for promoting thepublicdomain?

[Christian Beauprez]

Dear Becky,

> I've heard both Larry Lessig and Brewster Kahle use the argument that
> patents (on innovations) and copyrights (on artistic works) are similar
> legal mechanisms which allow people a limited monopoly over their ideas
> to give them an incentive to come up with them in the first place. This
> leads on to the attractive argument that therefore, why are patent terms
> 14 years and copyright terms life plus 70?

This is not quite true. Copyright does not cover "ideas" but the expression
of them. However the expression of ideas is not as simple as literally the
lines of the writing but also includes non-literal copying.

For example if I wrote a book called "George the Wizard" and plagiarised a
plot line to J.K. Rowlings work in detail, she could still sue me even
though I have not literally copied the work. I have copied her expression.
But she cannot own "a story whereby a boy magician goes to wizard school"
since this would be owning the "idea" itself and pre-empting the thousands
of other expressions that could also happen to use this idea. There is no
concrete line between idea and expression but there is a point in the series
of abstractions where the expression is no longer protected. (When it
becomes too generalised)

With patents, the use of the "functional idea" itself is what is given
protection. This is natural in the case of physical inventions, but when
applied to software patent law ends up monopolising abstract ideas.
(Incidentally abstract ideas are not supposed to be patentable according to
centuries of patent law- but of course they are when lawyers refuse to tell
the truth about the nature of software.) Because software is information
(writings), it has been given legal protection as a literary work
(intellectual not industrial property) under international law, making the
scope of protection narrower and only allowing the authors the right to
their expression not the idea.

Patent Lawyers are now trying to re-write software as industrial achievement
by highlighting words such as "process" and saying that copyright does not
protect the "process". However if we think for a moment about processes,
there are many processes that are not patentable because they are abstract
e.g. mental processes, methods of calculation (mathematical truths).

Also if you think about the sound that comes out of a CD player when you put
a CD in it, the copyright protection pervades through the excluded "method
of operation" and stretches to the sound produced quite apart from the
seperate copyright in the sheet music.

E.g. the "method of operation" exclusion from copyright is irrelevant to
software because we don't make the distinction between the data in the CD
and the "functional result" of the sound itself- they are the same
expression only in different forms. Nor do we claim that copyright
protection ends because the CD data is a method of operation for a
microchip- in the same way as software.

This may sound like an obvious point but you wouldn't believe the amount of
lawyers that ask us to believe that software when run on a computer is not
software "as such" but an industrial process. It's the same argument to say
that ideas in a book are not abstract if we claim them with the paper and
ink- it's pure bunkum.

> However, in a his lecture in Edinburgh on Free Software, RMS stressed
> the importance of keeping the ideas of patents and copyrights seperate
> because of the impending vote on software patents at the European
> Parliament. This is because the Free Software Foundation's GPL trumps
> copyright with "copyleft", but is powerless against patent law because
> of this idea of "technical innovation" the legislation attempts to
> embody.
>

The functionality is at a higher level of abstraction than the expression of
the program. As you move further up the pyramid of idea/expression towards
the ultimate function or idea of the program, the "literal words" of the
software can be replaced conceptually with the function of those modules and
on and on, until one is left with only the ultimate function. When patent
protection is given at the functional layer, it preempts any of the authors'
expressions that happen to accomplish the same task, this in turn means that
authors and the public domain of abstract ideas are effectively being raided
by groups of unscrupulous schemers. Also it means that the author's most
fundamental rights of freedom of expression are taken away by a form of IP
censorship.

I hope this is of some assistance- I have written about the ways in which
the rights of the author are violated by patents at
http://codeliberty.beauprez.net and how software patents are  illegal under
international law- documents contain links to treaties etc. so you can make
your own mind up.

Sincerely,

Christian