[ILUG] Free Speech Rights For Software Authors - last days for letters

[Eamon O'Tuathail]

Hi,

Thanks to all who are sending the letters to Mary Harney or others. If any
more are planning to do so, you will need to get your skates on and send the
letter by tomorrow evening - the important meeting is at the beginning of
next week;  so if your letter is to influence Ms. Harney, she will need to
get it ASAP.  

Here are some tips: Be concise (one page is best), single issue per letter,
use a spell-checker, use sound logic, don't include personal attacks (see
Lessig here: http://www.lessig.org/blog/archives/001881.shtml#001881) and
spell the recipient's name correctly (sorry to a previous poster). We all
know our local T.D.s (don't we?) but to check the correct spelling see here:
http://www.gov.ie/oireachtas/Members-29th-Dail/constituencies/xdunl.html
(e.g. Hanafin and Cuffe). The larger the perceived importance of the sender,
the greater the influence (an individual's letter is good; from a group of
individuals is better; and a letter from management in a small software
enterprise or a university is really excellent). I would emphasise again
that the first victims of software patents in Ireland are not likely to be
the free software/open source guys, but rather the small/medium sized
enterprises selling closed-source products (first rule of lawsuits: go after
the guys with the money). It is really important to contact managers of
software SMEs and get them to come out against software patents. 

Software patents (and not SCO) are going to be the more serious threat to
Linux in the U.S. in the next 18 months - whether this is the case within
Europe remains to be seen. Despite what some skeptics may think, the
campaign is beginning to have an effect - see James Hearld's posting here:
http://mail.fsfeurope.org/pipermail/fsfe-ie/2004-May/001062.html

-----------------------------------------------------------

Colm MacCárthaigh made some interesting comments here:
http://www.linux.ie/pipermail/ilug/2004-May/014851.html
I think we are drifting a bit OT on a Linux mailing list with this (so those
not interested can skip), but I would like to answer him.

There are a variety of sound economic arguments against s/w patents
> it's economically bad, that it actually discourages and disincentives
> innovation and that it would lose Irish jobs.
I agree with all that. I also agree with you that economic arguments will
initially have the best impact in Ireland. However, longer term, and around
the world, demanding free speech rights for software authors will be a much
stronger argument - not just for software patents, but also other areas
(e.g. publishing encryption software). 

> Ultimately all human endeavour is an act of expression
Yes, but also ultimately all human endeavour is an act of utility. Even
someone speaking is actually using his mouth to create sound waves; someone
playing a guitar is moving the guitar strings to make sound waves; let us
agree that in a world where we have utility and expression, a line has to be
drawn between both, to decide to what free speech rights apply, and to what
patents apply. I would like software to fall into the free speech camp. If
we agree that the higher intent of speaking, playing the guitar or writing
software is to ultimately interact with another human (e.g. via "dialog"
boxes), then this makes sense. 

I reckon free speech will be what ultimately triumphs software patents in
the U.S. Diehr and other famous software patents cases have not mentioned
free speech. There is ample legal precedence is U.S. courts that software
source code and software object code is a form of speech. The argument that
object code talking to a computer that then talks to a human should also be
free speech has yet to be won - but I think it will). Read:
http://digital-law-online.info/cases/60PQ2D1953.htm
particularly the sections entitled:
   2. Computer Programs as Speech 
   3. The Scope of First Amendment Protection for Computer Code

Sometime in the future, the free speech vs. software patents argument will
be tried in court. The two most interesting arguments I think will result in
free speech winning are the right to remain silent and expressive skills. 

In the U.S., your right to speak also include a right not to speak (remember
all the U.S. cop shows when they arrest the baddies and the cops read the
Miranda rights: "you have the right to remain silent;..."). A U.S. Supreme
Court judge also said it here: 
http://www.firstamendmentcenter.org/commentary.aspx?id=2205
"the First Amendment securely protects the freedom to make – or decline to
make – one’s own speech; it bears less heavily when speakers assert the
right to make other people’s speeches”. A patent must include a section
known as patent enablement, whereby the patent explains to a "technician"
how to manufacture what the patent describes. I believe this technician has
a right to remain silent during this activity - so he cannot write software
source code. (Note he does not have to make speech when manufacturing a drug
or building a mouse trap, so these can be patented). A second argument is
that this technician must be "skilled in the art" of whatever field the
patent refers to - so for computers, be may have utilitarian knowledge of
how to set up a computer network and the internals physical aspects of a
computer, but it cannot be assumed that he has any expressive skills - so
again he can't be expected to write software during patent enablement. 

With regards, 

Éamon Ó Tuathail
Tel: 01-2350424
mailto:eamon.otuathail at clipcode.biz
http://www.clipcode.biz