Subject: Re: termless copyright and patents
From: Thomas Lord <lord@emf.net>
Date: Mon, 25 Sep 2006 13:00:02 -0700

stephen@xemacs.org wrote:
> Thomas Lord writes:
>
>  > * Setting: A Summary of the Imagined Law
>
>  >   A "limited patent" is a (an imagined) form of patent that can
>  >   be obtained for as little as $75.  It is limited in term (say,
>  >   to a maximum of 10 years, less if the filer so chooses).  It
>  >   includes a mandatory offer for a public license, the price not
>  >   to exceed $1M (less if the filer choses).
>
> Sounds like it's in basically the same spirit as the Founder's
> Copyright deal that the Creative Commons offers.
>   

Caution.   Founder's Copyright and limited patents have shorter-than-normal
terms in common.   Both are concerned with the general goal of keeping the
public domain growing.   I think that's where the similarity ends.

FC is about getting works into the public domain during "our lifetime" but
it does pretty much nothing to create incentive for author's.   At one end
of a spectrum, FC licensing is probably just fine (but completely 
unimportant)
for, say, the entire catalog from O'Reilley.   At the other end, if you 
approach
a big publisher with your great american novel, FC is just a big strike
against you.

Limited patents, on the other hand, are about using markets to pay inventors
for putting something in the public domain just when its needed.  It's
about creating an incentive to invent *for* the public domain rather than
in spite of it.   People do studies about why hackers develop open source
and come up with unsurprising answers like "for fun" or "to develop a
reputation that can lead to a subsequent job" or "as part of a project to
build something proprietary".   Well, limited patents are one mechanism
that encourages people to develop open source *in order to get paid
for having done so successfully.*

One chooses FC to make a political statement.

One chooses limited patents to make money.


> As you point out, though, you can't weaken other patents in the way
> you propose without legislation, and I'm not sure trying to sneak that
> in to legislation is a good idea.  If you're going to try to bash
> "traditional" patents into something that is a little more friendly to
> lifestyle businesses, then just do that by restricting traditional
> patents in some way (for example, by legislating the "IC Convenant").
>
>   

It's funny you should say that because I've been trying to decide
whether or not covenants made by IBM, MSFT, et al. are entirely
altruistic or whether they aren't being made precisely to stave off
a court case in which defensive patent portfolios lose all value.
For example, IBM may discover that, in shipping Linux systems,
they have practiced many of their own patents.   Well, per RMS,
those patents would all now be publicly licensed for any purpose
whatsoever.  So, IBM is carving out a narrower license to explain
their activities.    And, for example, MSFT would be nuts to try to
shut down something like Samba (hypothesizing it must violate some
MSFT patent or other) but unless they explain *why* Samba isn't
being sued then haven't they, too, implicitly given unrestricted
public license?

And so these firms (and Mr. Rosen) are now in the interesting position
of trying to define "open source" in way that doesn't quite accord
with either OSI or FSF definitions.   Huh.

As for characterizing limited patents as being about a "lifestyle business,"
I'm really not sure what you mean (other than something derogatory).
Why would, say, the research dept. at HP not want to use limited patents?
One of the metrics they use currently for research success is peer
reviewed publications.   Why not add public license patent sales to that
metric?   Indeed, it could be an excellent mechanism for funding
and assigning bonuses to research employees.

> If you're going to subsidize such patents through a "patent liberation
> foundation", wouldn't it be likely to be cheaper to buy them outright
> and apply the IC Covenant to them?
>   

The hypothesized "Patent Liberation Front" wouldn't be much more
than, or all that different from, Russ Nelson's "pubsoft.org".

Would it be cheaper to buy them outright?   Well, you can find my
opinion in the scenario I described.    The patent was initially offered
for $300,000.     A total of $475,000 was spent liberating the patent
in three transactions (one of which was a group purchase by three
vendors).     So, yes, the total amount spent was more than was strictly
necessary -- sorta.

MSFT and IBM paid the first $165,000 to get a leg up while other
wankers with an interest in a public license were still figuring out
whether and how to split the bill.   In doing so, they helped increase
pressure to organize that later group purchase of a public license.
The purchasers of the group license each ponied up $70K.

For whom would it have been cheaper to buy the patent outright?

-t