Subject: Re: IC's patent-pending technology
From: <stephen@xemacs.org>
Date: Wed, 27 Sep 2006 19:30:38 +0900

Jamie Lokier writes:

 > Yes, absolutely.  Accidental re-creation means people are playing, and
 > trying things.

Play is good, but there's plenty of room for playing in the convenant.
*You just are liable to pay royalties if you get paid for playing.*

 > It is good for me to do this, for countless reasons.  It is a very
 > natural thing for me, and the results tend to be good, and (humbly) at
 > times they would count as "inventions".

Sure.  Now tell me, how many of those inventions are in common use---
derived from *your* invention, not independently---except by you?

I'll betcha within 12 months of grant the International Characters
patent is incorporated in dozens of commercial products, as well as
several otherwise open source products.

 > But whatever you and I may think about that balance: it is right and
 > proper that you should choose how you prefer to develop, and I choose
 > how I prefer to develop, and legal monopolies should not be dictating
 > those choices, for either of us.  Where that does happen, it should
 > only be where the benefits are substantial and outweigh the pain
 > caused.

The claim of the authors of the Constitution is that the benefits are
substantial and outweigh the pain (which latter isn't hard---the pain
is moderately sharp to only a couple of midnight hackers, the benefits
are small but potentially multiplied by billions of users and
thousands or millions of stockholders).  They derive from the
incentive to bring to market something that you're "sure" will be
useful but you don't know how.  Eg, you've known enough to work out
the IC techniques for years, you wrote.  Tom Lord actually posted that
the basic idea was on his "short list"!  Well, do you know how many
companies are out there whose customers could have benefited from this
technique since Tom put it on his short list, years ago?  I don't, but
I'll certainly not believe "zero".  In fact, I'd be willing to bet,
say $25,000 by buying stock in the company, that there are quite a few
willing to pay quite a bit.

But neither of you had any *thought* of taking such a technique to
market, until Prof. Cameron announced it.  Why not?  I don't know in
your case, but Tom was apparently looking right at the idea, so I
guess he decided not to because he didn't need it for his project at
the time and (sans IP) money wasn't going to just walk up and jump in
his pocket.  Nor is it clear that you or Tom would market the
technique, rather than simply passively waiting for the world to beat
a path to your doorstep and derive new programs from yours.

Don't you think you guys should apologize to all those folks for
keeping them waiting for something you should have delivered years
ago? :-)

You could have invented it; in fact, you've known for years how to
invent it; but you didn't.  And that is a cost to society.  One which
developers tend to be biased against fully perceiving because
programmers are oriented to offering solutions to a problem, not a
product to the market to let the market figure out how to use it.
(I'm not saying that problem-solving should be devalued, nor that all
"solutions" in search of problems to solve will find them.  Just that
itinerant solutions have their value, too, and that you're likely to
undervalue them compared to the market.)

 > > True, but you could equally well argue that given the basic idea, an
 > > experienced practitioner would realize that the relevant algorithms
 > > would have *already* been "mechanically derived" and refined, and
 > > Google for the basic idea.  The number one hit would probably be the
 > > patent and in the sidebar there'd be an ad for licensing the patent.
 > 
 > That is a fair point.

Thank you; I in return concede that it is hyperbole and won't work
anywhere near that well in practice, as pointed out by Forrest.  I do
think it's worth working toward a reform that improves the process.

 > Feel free to manage your own business as you like.  But it's right to
 > let people do their thing as they prefer elsewhere.

It's not that simple.  If by not patenting an innovation, I find that
I have no incentive to market it, it may not get marketed for years.
So sure, your midnight programmers are free to do their thing, but
those businesses that would have happily paid twice my asking price
for a license are not free to do theirs, because the prerequisite
doesn't exist.  And there's no reason to suppose that the invention
will be documented or announced anywhere but in the source of the
midnight programmer's program.

 > > We're not talking about what's "usual"; we're talking about
 > > patents which [...] provide a public covenant exempting
 > > distribution as open source software and R&D from any action for
 > > infringing the patent.

 > Except for that slight error... the covenant doesn't exempt
 > distribution as open source is commonly defined.  It exempts it as
 > they would _like_ to define it.

That's my error.  They don't try to define open source.  Larry
explicitly denies claiming that the combination of their covenant with
an open source license on the code would be an open source license.

What is true is that if you remove the code practicing the patent,
the rest is open source on whatever terms the distributor chose.

 > More importantly, it doesn't exempt distribution on terms compatible
 > with common open source policies, communities and projects, and there
 > seems no realistic way to make them compatible, at least not in the
 > next few years.

Some are incompatible, yes, but "all" is not obvious to me.
Cf. Larry's book where he discusses how patent licenses are treated in
many of the acknowledged open source and free software licenses.  In
order to protect the licensors, many make very restricted grants of
patent license.  Their communities seem happy enough with them.

The International Characters covenant makes a different tradeoff; if
more patent holders use it, I wouldn't be surprised if one or more
communities develop around it, just as happy.

 > Until then, it isn't.  It's not exactly their fault, but that's the
 > position they're in, and why the covenant as offered isn't beneficial
 > at present.

To you.  It will be beneficial to me, if I become convinced that it is
compatible with the GPL.  I have no qualms whatsoever about offering
my users a value-added module with strings that I can't do anything
about.

 > > Which puts open source software back on the same footing as closed
 > > source software.

 > With the awkward community thing: "open source" code covered by that
 > covenant will not get wide re-use because it goes against difficult to
 > change community norms.

Like Aladdin Ghostscript?  Like original SSH?  Like PGP?  Like
libungif (a somewhat different case)?  Like Debian's multitudinous
proprietary plugin installers?

If I were IC, I wouldn't worry about community norms.  RMS been
inveighing against backsliders for years, and the world has gone on.
The free software movement has its community, and it's still going
strong.  But there are other communities, which coexist, and they're
strong too.  To the extent that these techniques are valuable, those
who value them will come and form communities around them, with
different norms.

 > But those norms are there for a good reason: to grease the wheels a
 > bit, and get even the altruistic fed, by allowing people the
 > freedom to engage in commercial practice _at any scale_ with
 > minimal, cost-free, and low-admin barriers to that.

They still can do that, given the covenant.  They have to avoid
combinations with proprietary and unpublished products, including what
we would call "mere aggregation" (and probably licenses with required-
patent-licensing language in them).  This cuts down a lot of the
business models commonly used, of course, but not to zero.

 > you will have to address how to fit the revenue collection in
 > without substantially affecting that kind of commercial practice.
 > (Not all commerce is a "business" with substantial resources.)

That's a tall order, given that we don't know how to address the
general revenue collection problem for FSBs at the moment. :-)