Subject: Re: Why software patents are bad
From: craig@jcb-sc.com
Date: 19 Sep 1999 12:00:53 -0000

>>>>>> "craig" == craig  <craig@jcb-sc.com> writes:
>
>    craig> Okay.  BTW, this has been discussed on gnu.misc.discuss for
>    craig> ages, and, indeed, it's not clear.  My hope is the courts
>    craig> will recognize the concept of both compensatory and
>    craig> punitive damages being awarded not just to the *plaintiff*
>    craig> but to the *community* the OS license was designed to
>    craig> benefit, and which was damaged by the infringement.
>
>My hope is that they do no such thing unless the suit is properly
>framed as a class action.  (I have no idea if that can be done.)
>
>Please remember that _once the intellectual contribution is published_
>society has no interest in enforcing the property rights on _any_
>intellectual contribution.  If you believe that there should be no
>such thing as intellectual property, OK, argue for its elimination.

Hmm, I'm unclear on what the issues are here.  Almost certainly, you
see a much wider set of legal and social issues than I do.

So assume I'm wrong, but let me at least clarify what I was getting at.

My impression is that the courts often award *vast* damages to plaintiffs
that are *way* out of line with a simple, strict notion of what is
compensatory and punitive, though I assume that's more often the
case when the defendant is an entity other than a human being.

For example, billion-dollar awards when the simple matter of compensation
is in the thousands or low millions of dollars.

The principle cited is that the plaintiffs cannot simply be punished
in the sense of equal justice under the law, or making sure they
"get the message" that what they did was wrong.  That's considered
to be achieved by sentencing, say, a convicted rapist to 10 years
in prison.

The rationale seems to be to make the punishment so severe, and
thus strongly tailored to the defendant's (perceived) ability to pay,
that the plaintiff is *highly* unlikely to consider the (presumably)
premeditated act to be worth committing in the future.

Otherwise, the plaintiff might continue to make the assessment that
the penalties it might have to pay are worth whatever sin was committed.

In the case of a convicted rapist, we no longer permit a jury to decide
that he things even 10 years in prison is a price worth paying, and
therefore sentence him to 20, 50, or 100 years, and so on.  (One could
argue that, in extreme cases of a client being presumed able to pay
damages, we change the equation -- e.g. OJ Simpson.  I think that's
rarely the result of a coherent thought-process, myself, but that it's
highly dangerous for society to acquit the wealthy while convicting
the rest in criminal court, and use civil courts to punish the wealthy
via monetary means, even though I can see how it might work quite well
on a defendant-by-defendant basis, because I think a society that implements,
or especially applauds, *non-equal* justice is shaky in the long run.)

I view this approach of awarding "ludicrous" amounts to plaintiffs
as one that takes *most* of its impetus from the argument that these
awards are what is necessary to "benefit society", even though it
takes the direct form of benefitting the defendants directly.

I.e., in this is the crux of my impression, we don't award defendants
based simply on appropriate compensatory and punitive damages in
*their* particular case -- we award them vastly more, in cases where
we (society, via jury) believe that's necessary to eliminate, or at
least substantially reduce, the belief on the part of *that* plaintiff,
or any *other* entity or person, that the potential of getting caught
and punished are worth the upsides of the bad behavior.

Now, for free software, as Russ Nelson (or somebody) pointed out, there's
not much in the way of *monetary* damage to a copyright holder to GPL'ed
work (for example) that was illegally distributed under a proprietary
license.

But I would hope that, if the courts do, as they appear to, take into
account not just the compensatory and punitive damages due the
*specific* defendant, which I agree might well be limited (vs. ripping
off proprietary software), but the ease by which the defendant and
other entities *can* rip off free software combined with the extra harm
that does society regardless of specific plaintiff.

So as long as this "let's punish beyond the issue of this one plaintff
and this one defendant, and send a message" mentality governs our
legal system (especially in civil courts), I'd hope the courts would
view free software as benefitting the public, since it clearly does.

>But please don't argue for the _courts_ legislating by reinterpreting
>legislation and case law "in the light of" social benefit.  That will
>cost us all the benefits of the rule of law itself, and leave us with
>a dictatorship of the judiciary.

I'll try not to, because I tend to agree with your point of view.

However, my impression is the second sentence is about 30 years old --
we *already* have a dictatorship of the judiciary.  Here in the USA,
many judges (as well as juries) are *proud* of effectively creating
new law, as I'm sure you know.

And, I'm not sure how "punitive" turning over defendant's code to
a more-public license really is.  I guess, more in line with the
traditional (conservative?) view of punishment in civil cases,
one could argue that since the defendant wasn't going to get monies
from all that code he wrote, but *was* going to get access to any
code based on it, that punishment should therefore go well beyond
merely assuring he does vis-a-vis the litigated proprietary code.

So maybe instead of punishing by ordering *more* proprietary code owned
by the defendant being distributed under an OS license, the courts
could order it to be, itself, awarded to the plaintiff, to do with
as he wished.

        tq vm, (burley)