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Re: Open Software License v2.1



> > On Sun, Sep 19, 2004 at 10:59:36AM -0400, Brian Thomas Sniffen wrote:
> >> somewhat.  In a patent case, the property right to the patent existed
> >> before the "original" software was ever written.  For the person who
> >> wrote the software *after* the invention was patented to try to
> >> blackmail the inventor is horrible[1].

> Raul Miller <moth@debian.org> writes:
> > This is legal fiction, and sloppy legal fiction at that.
> 
On Sun, Sep 19, 2004 at 02:19:06PM -0400, Brian Thomas Sniffen wrote:
> Does this mean you don't have a substantive repsonse?

More like there are so many tangents I could go off on that I'm not sure
where to start.


Here's some of the issues around this being "a legal fiction":

The process of writing software is a process of invention.  Every line
is either copied or invented.

The most useful frame of reference which people use to describe these
inventions is "mathematics".  In other words, the concepts used are
highly abstract and the associated meaning comes from the assumptions
and/or axioms which people add.  Otherwise, the same mechanical sequences
of 1s and 0s would have no meaning at all.

When you talk about patenting inventions in the context of software on a
general purpose computer, what you're really talking about is government
licenses which grant people exclusive ownership of ideas which are loosely
associated with various groups of 1s and 0s.  It's not the 1s and 0s
that really matter -- it's what you can get the enforcing government
officials to agree to that matters.


Here's some of the reasons I used the word "sloppy":

In the U.S., there is no real distinction between a person who wrote
software after an invention was patented and one who wrote software before
the invention was patented.  What matters is whether or not the person
can prove that the relevant ideas were sufficiently obvious before the
patent was filed (which can be years before the invention was patented,
and can also be years before the invention itself -- this latter works
as long as the invention is described in terms similar enough to what
was originally filed).

Also, the rights in question are not property rights but intellectual
property rights.  While both of kinds of these rights are legal rights,
and the word "property" appears in both phrases, "property rights" are
very different in nature and scope than "intellectual property rights".


I could go on, and discuss why this class of situation is different from
blackmail, and/or why it is almost never horrible, but there are just so
many assumptions leading up to that point it's difficult to know where
to start.

-- 
Raul



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