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Re: A radical approach to rewriting the DFSG

On Mon, May 31, 2004 at 10:54:13PM +0100, Andrew Suffield wrote:
> Phrase the proposed restriction in a way that is not specific to
> patents. Then construct a scenario where you apply it to copyright. Is
> it still an acceptable restriction?

I think this would be a mistake.

Patents are more different from copyrights than use is from copying.

With copyrights, there is [fairly clear] copyright holder.  This is the
author(s) or someone who has been assigned copyright.

With patents, it's not clear what patents are relevant, who the patent
holders are, nor whether the patents are valid.

Additionally, most copyrights are valid -- we can safely assume that if
there is no copyright notice on something that we can't redistribute
it, and if there is we have a reasonable certainty that it's correct.
Most patents are not valid -- we can't assume that the absense of a patent
license means that we can't distribute something and we can't assume that
the presence of patent information means that the patent is valid (in the
U.S., when a patent issue is taken to court, it's assumed that the patent
is valid and it's the responsibility of the defendant to prove otherwise,
but it's still the case that most patents issued on software are issued
without any consideration of what's obvious nor of what prior art exists).

Historically, that's meant that we've been careful about copyrights,
and that we've largely ignored patents except where someone has been
active in claiming that a patent applies to some class of software.

And that's another thing that's different about patents -- a patent
typically covers many programs, including those which haven't been
written yet, and including those which are written in complete ignorance
of the patent.


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