Subject: Re: Why software patents are bad
From: craig@jcb-sc.com
Date: 17 Sep 1999 19:59:24 -0000

>> I presume that open source software is good for society -- better than
>> closed source software.  If I'm right, then software patents are bad
>> for society, because it's easier to find patent infringements when the
>> source code is available.
>> 
>> I didn't think that was a particularly profound observation, but
>> someone whose knowledge and background I respect told me that he'd
>> never heard it said before.  So, I'm saying it.
>
>I don't think this line of reasoning holds up at all.  Consider: "I presume
>that companies whose employment conditions are out in the open are better
>for society than companies who hide their employment conditions.  If I'm
>right, then worker protection laws are bad for society, because it's easier
>to find violations of them when the company isn't hiding their employment
>conditions."

That's an interesting analogy, one which I think holds up somewhat
well, as well as agreeing with the statement itself, for pretty much
the same reasons I posted earlier in response to Russ's statement.

(I.e. I have little problem with eliminating worker-protection laws if
the employment conditions are as out in the open as open-source
software.)

I will point out, however, that there's a big difference in the degree
of practicality between opening up source code and opening up employment
conditions.

In particular, opening up employment conditions implies companies
can basically keep *no* secrets about their operations.  (The military
would presumably be exempt, for example, in which case existing laws
would apply there just as well.)

So the question to ask is, *if* it was fairly easy, and very positive
overall, to truly "open" employment conditions for public view to
a degree similar to open-source software, exactly why would we *need*
worker-protection laws?

Not that I want an answer per se, but the process of thinking about
possible reasonable answers illustrates another aspect of the
differences between the analogies: worker-protection laws imply
a need for enforcement of behavior based on knowledge *without*
being predicated on the supposed need for making that knowledge
open, while software-patent laws imply a need for enforcement
of monopolies *necessarily* predicated on the assumption that
the knowledge would not otherwise be made open (or developed in
the first place).  I.e. software-patent law is predicated on
the supposition that more openness is desired but *not* otherwise
achievable -- an assumption knocked down by widely prevalent
open-source software.

So by opening up the information, the need for software patents
really is cut off at the knees to a much greater degree than
the need for worker-protection laws.

I think this is therefore an analogy that, while provocative, is
not as persuasive as some other might be.  It does, however, illustrate
what might be a lack of verbosity on Russ's part to fully elaborate
on the logic of his point.  (That's a compliment -- I'd *love* to
someday be "criticized" for a lack of verbosity.)

        tq vm, (burley)