Subject: Re: Examples needed against Soft Patents
From: Ben Tilly <>
Date: Fri, 31 Dec 2004 22:18:28 -0800

On Fri, 31 Dec 2004 20:57:20 -0500, Seth Johnson
<> wrote:
> Ben Tilly wrote:
> >
> > On Fri, 31 Dec 2004 04:56:49 -0500, Seth Johnson
> > <> wrote:
> > I believe that those things were understood to not be humanly
> > invented.  By contrast a useful piece of software is humanly
> > invented.  The distinction is subtle, and a correct answer will be
> > hard to pull from the historical debate because people tend to
> > not clarify questions that they didn't think of.
> It's not as if nobody had a thought for the nature of knowledge!
> :-)

Lots of people did.  But a lot of what they thought does not
necessarily fit well with how things have actually turned out.

> The distinction you bring up is actually just another way of
> acknowledging the same basic truth.  Discovered principles,
> whether empirical or pure, are not humanly invented.  They are
> also intrinsically common goods, and many would observe that both
> results derive from the same nature I cite.  And they have always
> been understood as such.  That's actually a point that's
> perennially revived throughout history, and it's not about to go
> away . . .

Microsoft Windows is not a discovered principle.  Defending
against software patents on the grounds that it is is an
argument that is likely to only convince those that would be
convinced by any argument or none at all.

> > > > For a random instance, US patent 1,647 issued in 1840 seems to
> > > > be about something that's pretty abstract.  (That's the patent
> > > > on Morse code.)
> > >
> > > Yes, what's happened is, many things were patented that might
> > > have been suspect to some folks at the time, but now are much
> > > more plainly suspect.  The Morse code patent we now can see in
> > > terms of symbolic processing -- that it's a set of symbols that
> > > can be used like code to be automated.  But at the time, it
> > > seemed much more like a particular technical solution to a
> > > problem.
> >
> > Do you have documentation that people at the time questioned
> > whether Morse Code should be patentable?
> No.
> But I'm a little lost here, wondering why you call for
> documentation given what I'm actually saying, not to speak of the
> fact this is a forum of like-minded advocates.  I will do due
> diligence at a time when I am required to dispatch the foe.  I'm
> actually not convinced that having documentation will be all that
> critical when that time comes.  It really only requires the
> policymaking fora to open up, when they have been scrupulously
> kept privileged the past twenty years.  Then put the point
> across, and it delivers.

I'm asking for documentation because I like to understand
things.  I do not like to say things because I find them
convenient to whatever point I would like to make, I like to
limit myself to what I believe to be true.  (Even if that proves
inconvenient from time to time.)  If I want merely to figure
out how to preach to the choir, then I'd spend my time
coming up with slogans.  But I don't.  In fact I'm more likely
to criticize someone I agree with than someone I don't
because I believe that a bad argument does an active
disservice to me.  (Another bonus, people who know me
pay more attention when I argue for whatever I care about
because they know that I work to be honest.

Furthermore I'm asking for documentation because I
suspect that you're actually wrong.  I don't know it - you
may be an expert on this and I'm certainly not.  But right
now I have no idea who you are, or how strongly I should
weight what you say.

> I've already observed similar effects.  When the Commerce
> Department was considering sanctioning "content control" in the
> broadband Internet here in the States, NY Fair Use brought about
> a gathering of information freedom representatives with them, and
> I essentially said very similar things, pertaining to copyright
> ("copyright doesn't cover information" actually goes very far).
> And we stopped content control in the broadband Internet!  But


> then again, I did find a couple of historical references helpful
> (the efforts of the first Register of Copyrights, Thorvald
> Solberg, at the turn of the century as he confronted player
> pianos, radio, motion pictures, etc.; and the Feist Publications
> Supreme Court finding).

And there you have demonstrated one reason why I'd like
references.  Because if I ever make an argument like this,
it would really help me to have them!