> There's certainly no need to be offensive about someone choosing, in this case, to make a philosophical argument regardless of whether or not you think it will influence a judge on the topic.
My apologies to anyone I offended there— the barb was made out of irritation at the many discussions I've had where the other side simply kept repeating the fact that "software is math" as though I were some idiot to not know it while simultaneously suggesting this fact to be a major revelation which obviously settled the matter completely.
It is not so— but for some reason, some people can't seem to get over that idea that some rule so fundamental to their science is more or less irrelevant to the law. I wished to head off that argument preemptively by making the claim that its so useless an argument that anyone who can't get past it is suffering from mental dysfunction. To argue it once as a point of consideration— fine, it was rude of me to paint everyone with that broad brush.
The core point remains: Software-is-math-thus-not-patentable-under-the-rules is not a good argument or even a novel one. The courts have considered ideas of this kind many times before and discarded them for the reason I described: "petitioner['s] [...] argument that if everything other than the algorithm is determined to be old in the art, then the claim cannot recite statutory subject matter [...] To accept the analysis proffered by the petitioner would, if carried to its extreme, make all inventions unpatentable because all inventions can be reduced to underlying principles of nature which, once known, make their implementation obvious" (Diamond v. Diehr)
I would gladly agree with you on almost any ethical ground you offered— but the courts generally leave it to congress to create systems and define their contours, only intervening when the injustice is particularly great. They have had many opportunities to intervene in this area and they have carefully avoided doing so. I do not have the slightest disagreement that our patent system needs massive reforms relative to how patents are applied to software.
But such reforms seem nowhere in sight, the system we have is the system we have— socially ideal or not— and in this system the unlicensed use of H.264 is so thoroughly clear a violation that it creates no practical opportunity to chip away at the boundaries. Distributing H.264 under the guise of willful ignorance only serves to entrench the existing system by enriching its beneficiaries through enhanced network effect and by denying marketshare to competing alternatives which are unencumbered or at least less-obviously-encoumbered enough that litigation over them would bring the opportunity of improving the system.