Subject: Re: software patents are (almost) good
From: Thomas Lord <lord@emf.net>
Date: Thu, 03 Jul 2008 19:50:40 -0700

Stephen J. Turnbull wrote:
> As far as I can see, as long as the device is actually a ROM, or
> otherwise "software compiled to silicon," and source is distributed
> with the device, you can't charge rent under either the GPL or the
> OSL.  Neither one requires that users be able to modify the instance
> of program that they are actually using, only that they be able to
> copy, study, modify, and redistribute some instance of the program.
>   


Nudge nudge to Mr. Rosen if he cares to give a professional opinion but
mine is along these lines:

If you're selling ROMs as a mechanism of distribution well, then,
bully for you.   If you're selling a device incorporating such ROM's
in a non-generic way, bully for me.   In fact, I can see (imo) how
your all-but-the-ROMs-included device, designed for the ROMs in
question, would infringe in a contributory way.   




How did Mr. Rosen put it on this list some time back -- along the lines
of of "you plunk down on  the table, on one side, the patent and on the
other side the device -- then you ask 'hey, judge, does *this* (point to
device) practice *that* (point to patent)?"   Makes a lot of sense.   The
market for app-specific devices is huge for many software innovations
and it basically doesn't touch much on the four freedoms to keep those
as exclusionary.

I think there's also some room in business model patents related to
software, too, especially around web services.



>  > Rather, lobby for or argue in court that the practice of the four
>  > freedoms as characterized by OSL should not be recognized as
>  > making, using, selling, or offering to sell in the ways that can be
>  > excluded by patent protection.
>
> I suppose this would have to be done by legislation; there is no fair
> use or personal use concept in patent law AFAIK.
>
>   


Like I say, I think it can happen sans legislation.   You don't need
"fair use" -- it's not about that.   It's about freedom of expression and
privacy.  But, yeah, some simple legislation could avoid having to make
that case before SCOTUS even if in my theory such legislation would
be redundant.

-t