..Still, there is substantial evidence patents represent the evolution of the software industry and provide benefits to those who obtain them..

That’s not the point. Patents may in fact benefit the holder, but not benefit the public at all. Recall Adam Smith:

The interest of the dealers, however, in any particular branch of trade or manufactures, is always in some respects different from, and even opposite to, that of the public. To widen the market and to narrow the competition, is always the interest of the dealers. To widen the market may frequently be agreeable enough to the interest of the public; but to narrow the competition must always be against it, and can serve only to enable the dealers, by raising their profits above what they naturally would be, to levy, for their own benefit, an absurd tax upon the rest of their fellow-citizens. The proposal of any new law or regulation of commerce which comes from this order ought always to be listened to with great precaution, and ought never to be adopted till after having been long and carefully examined, not only with the most scrupulous, but with the most suspicious attention. It comes from an order of men whose interest is never exactly the same with that of the public, who have generally an interest to deceive and even to oppress the public, and who accordingly have, upon many occasions, both deceived and oppressed it.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

The software industry seems to be doing just fine without the (anti-circumvention clause of the) DMCA, since many (most?) programs are distributed without DRM to protect the executable code (and thus the DMCA does not apply). It is thus clear to me that the DMCA currently does not provide “meaningful protection” to software, simply by vendors’ decisions not to implement DRM.

Copyright is the best choice as it restricts a content owner’s claims to the actual implementation of an idea and not *all* implementations, as a software patent necessarily will do. Tim and others have said this before in much greater depth.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.

The software industry seems to be doing just fine without the (anti-circumvention clause of the) DMCA, since many (most?) programs are distributed without DRM to protect the executable code (and thus the DMCA does not apply). It is thus clear to me that the DMCA currently does not provide “meaningful protection” to software, simply by vendors’ decisions not to implement DRM.

Copyright is the best choice as it restricts a content owner’s claims to the actual implementation of an idea and not *all* implementations, as a software patent necessarily will do. Tim and others have said this before in much greater depth.

I’d like to see patent reform, and politically this is a bipartisan issue (see S.3818 Hatch / Leahy patent reform bill). There’s a host of procedural and substantive changes that can make the system of obtaining and litigating patents more efficient, less costly, and fairer, especially for small businesses. However, I don’t advocate scrapping software patents. Strengthening the obviousness standard and enhancing disclosures of prior art will go a long way toward ridding the system of bad patents, while still rewarding the deserving. This is the best way of reducing the patent thicket that X.Trapnel referenced and inflated licensing costs Lewis noted, but still retain the patent incentives/rewards system.

As for whether Novell violates the GPL, or at least the community spirit of the GPL — well, the FOSS community may be the best judge and jury for this determination. And the market, generally, will determine whether the partnership is a good thing for the shareholders and customers of each company.

X.Trapnel is rightly concerned about public choice theory and its application to IP policy. Has U.S. patent policy been gamed in favor of large companies? I often hear the opposite — that patents help protect small inventors against large corporate bullies. But I still think our patent system should work better for small business and entrepreneurs (and everyone, really).

My prediction – we’ll see more covenants not to sue from IP rights owners, market forces will push open source and proprietary software makers into other forms of partnership arrangements, and the vast majority of consumers will benefit as a result.

Email Microsoft Research and ask them what technologies! http://www.microsoft.com/about/legal/intellectualproperty/ipventures/default.mspx

Such as?

WOuld Microsoft give up patents before copyrights? Well, it leverages both as complements. I don’t think it would give up either. In other words, its impossible to answer your question.

I don’t even know what this means. Almost everything Microsoft sells is (or at least contains a lot of) software. All of their software is copyrighted. So I don’t see how it would even be possible for them to spend “much more” on patented technology than copyrighted technology.

It’s probably true that almost everything they do is covered by both patent and copyright. But I repeat my question: do you really think that Microsoft would give up its copyrights before it would give up its patent portfolio? Seriously?

No, your statement is absurd. Microsoft spends much more on patented technology. On the other hand, you could say that all code is copyrighted, but still, prominent investments are made with patenting in mind.

Making any promises on behalf of the public that they would gladly sustain a suspension of their liberty in exchange for delivery of even more work into the public domain, was not actually a deal the public would have tolerated.

The public may well have turned a blind eye to a few publishers consenting to the institution of monopolies, or even a few manufacturers doing this, but not the general public themselves.

The thing is, the public are now all artists, authors, publishers, software developers, manufacturers and users.

And the IP maximalists say “But don’t you want to enjoy the benefit of tieing the hands of all your fellows?”

“No. We never made that deal with the devil. You did.”

The people want their public domain back. Artists, authors, software developers, are all asserting their right to liberty, their right to freedom of expression, their right to create software and not be sued by the devil’s corporations.

So, ditch copyright, patents, and the DMCA. And while you’re at it, tidy up trademarks.

Making any promises on behalf of the public that they would gladly sustain a suspension of their liberty in exchange for delivery of even more work into the public domain, was not actually a deal the public would have tolerated.

The public may well have turned a blind eye to a few publishers consenting to the institution of monopolies, or even a few manufacturers doing this, but not the general public themselves.

The thing is, the public are now all artists, authors, publishers, software developers, manufacturers and users.

And the IP maximalists say “But don’t you want to enjoy the benefit of tieing the hands of all your fellows?”

“No. We never made that deal with the devil. You did.”

The people want their public domain back. Artists, authors, software developers, are all asserting their right to liberty, their right to freedom of expression, their right to create software and not be sued by the devil’s corporations.

So, ditch copyright, patents, and the DMCA. And while you’re at it, tidy up trademarks.

The market for GPL developers like the Samba team is like the market for mechanics, in that they’re expected to bring their own tools. The GPL’s “patent kill switch” is like an agreement between the mechanic and the employer that the mechanic will be allowed to take his tools home if he quits or gets fired.

Garages could offer to pay mechanics less and provide tools, and mechanics could agree to work for less if allowed to use the garage’s tools, but both mechanics and garages seem to prefer the current arrangement. The person in the position to damage or care for the tools has an incentive to protect them and upgrade them.

You can’t possibly mean that. You’re telling me that if Microsoft had a choice between giving up its patent portfolio or its copyrights on Windows and Office, they’d opt to keep their patents? That’s absurd.

Copyright was significantly given a demotion after Lotus v Borland when firms began to rely more on patents.

Check out some literature on copyrights and patents as substitutes/compliments in the MODERN software industry. Authors of note include Mowery, Graham, Lerner, and a couple others. Patents are now the dominent form of protection.

I ask, because, as pointed out above, Tim wants to eliminate software patents, but he also wants to repeal the DMCA. I’m not sure if he’s just attacking IPRs from all sides, or if he has a unitary concept in mind. Put together, his views on patents and the DMCA effectively emasculate any meaningful protection fot software.