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

[Colm MacCarthaigh]

On Thu, May 13, 2004 at 05:18:35PM +0100, Eamon O'Tuathail wrote:
> 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). 

This is the exact kind of delusional logic that actually damages the
prospects of success. Writing code is no more "speech" than making a
watch. Both are acts of expression and both are acts of utility.  You
are *never* going to convince legislators, and for that matter courts,
that writing code is any more an act of speech than making a watch and
that is the crux of it. 

As for publishing encryption software, to extend your logic there should
no such thing as official secrets, because that too hinders free speech.

All specialists consider their endeavour creative, every programmer on
this list realises the creativity that can be involved, but it's exactly
the same with everything else that is patentable - there is no
fundamental difference whatsoever. 

A lot of people in the software patents debate claim that Software
patenting is about the patenting of ideas and concepts as opposed to
actual inventions. It's more subtle than that, "inventions" are just
ideas and concepts too - they just happen to have physical
manifestations. But you won't evade the patent on the post-it by
changing the colour, paper-size or glue - it's the concept that counts.
Does that hinder the free-speech and creativity of stationery designers?

People talk about the general and obvious nature typical of some
software patents, and that too is a bad thing, but you won't win the
argument on legal grounds. People have patented general and obvious
things, fundamental to entire industries, and it's been just fine.
Pretty much every component in the electronics industry is patented, you
can't build a computer without a transistor, is my freedom of expression
to build an artful computing system therefor limited?  Of course not.

What you're missing is that there is no absolute right to express
yourself through any medium you see fit. There are thousands of
case-laws where European courts have found that people did not have the
right to express what others had patented. All of the problems you cite
are general to patents, not just software patents - and the patenting
system is on pretty solif legal ground.

> > 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 don't see how that makes any sense. The ultimate aim of everything is
to interact with a human at some level.

> 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

I'm familiar with the precedents, and I'm familiar with the DeCSS-based
efforts in the US also. 

> 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. 

I truly believe you are extremely misguided in that, and also our
"right" to free speech is much much weaker in Ireland, to the point of
non-existance (it's even an offence to utter a profanity in public).

More generally, I don't see why you keep referencing the laws, legal
system and constitution of a completely different country. They're not
applicable here.

Back to reality; Software patents are monumentally bad, but there is no
point making arguments that anyone with a knowledge of the legal basis
for the existing patenting system is going to tear to shreds in seconds.
Software just happens to be one of those co-operative, low-capital,
broad-based, interdependent industries in which patents serve only the
few and work against the wellbeing of the industry as a whole - that's
all there is to it. There's nothing special about software that should
make it legally different.

-- 
Colm MacCárthaigh                        Public Key: colm+pgp at stdlib.net