Difficult for a farm boy like me

Posted May 5, 2005 1:49 UTC (Thu) by tjc (guest, #137)
In reply to: Difficult for a farm boy like me by ccyoung
Parent article: Software, reverse engineering and the law

I'm having real difficulty. When "software patents" and "EULA's" are being talked about, this is coming close to how "extortion" and "blackmail" were explained to me when I was a young man.

As far as I can tell the main difference between software patents and extortion is the matter of legality. Extortion is illegally using one's position of power or influence to obtain some benefit, whereas a software patent is government-granted permission to do so legally within the scope of the patent. Is this correct?

Difficult for a farm boy like me

Posted May 5, 2005 10:14 UTC (Thu) by NRArnot (subscriber, #3033) [Link] (14 responses)

Yes, you're pretty much right that a patent is a legal right to obtain money or a monopoly using threats (of legal enforcement). Extortion is much the same except the right claimed is not legally granted and the threat is prohibited rather than legally sanctioned.

Our legislatures seem to have forgotten why patents were first introduced: to preserve knowledge and to allow progress extending beyond one person's lifetime. Originally a master craftsman kept his best tricks secret, so as to prevent every other lesser craftsman from undercutting him. If the world was lucky he trained an apprentice or two, or pooled his knowledge within a guild of master craftsmen. But all too often, knowledge died with its posessors.

A patent was a legal monopoly to exploit an idea and to prevent others from doing so, granted in exchange for full disclosure. After the patent expired, anyone could use the idea. There was no longer any risk of it dying with its inventor. Progress once made was progress forever.

It's time that full disclosure is again insisted on as part of a patent. There should be a hard line between a patent and a trade secret: if the patent makes insufficient disclosure for it to be easily copied after the patent expires, it should automatically be invalid.

Difficult for a farm boy like me

Posted May 5, 2005 11:28 UTC (Thu) by tjasper (subscriber, #4310) [Link]

Perhaps also, patents should have a much shorter lifespan - like two years - before being made public. Software develops so fast that they should relate to the lifetime of the product. When cotton gins were invented, patents were useful for half a lifetime, enough for people to benefit from the invention. With software, if it is patentable at all, then it should be for half the life of the product and four years is about the useful life of a software product. After two years, the patented software should be made public for the greater benefit of all, just as patents do/did for more mechanical based inventions for everyone in the past.

Just my $0.02 worth

Trevor

Difficult for a farm boy like me

Posted May 6, 2005 23:20 UTC (Fri) by giraffedata (guest, #1954) [Link] (9 responses)

As a contract lawyer, I am frequently amused by how people are willing to call any sale "extortion" if they don't like the terms.

Here's the difference: extortion is an offer to sell something that the seller has a moral obligation to give for free. It's a form of theft. That moral obligation is, of course, highly subject to personal values and biases. Consequently, statutes that outlaw extortion just cover very specific cases of it and the argument "this is extortion, your honor," just doesn't appear in court (at least not when parties are represented by lawyers).

Examples (of the terminology, not any particular statutes):

For $1000, I offer to give you my car. Not extortion.
For $1000, I offer not to punch you in the face. Extortion.
For $1000, I offer not to tell any one but you how my invention works. Not extortion.
For $1000, I offer not to tell your wife where you were last Thursday. Extortion.
For $1000, I offer to vote for your shareholder proposal (which I favor anyway). Not extortion.
For $1000, I offer to vote for your zoning ordinance (which I favor anyway). Extortion.

"Blackmail," by the way is a subset of extortion. It's extortion where the thing offered is not to tell someone something.

Our laws tend to reflect our collective morals, so it's reasonable to say that when you offer to sell something that you're legally entitled not to give, then it's not extortion. So where the law explicitly says you're allowed to stop someone from practicing your invention, it's not extortion to demand payment from him not to.

with all due respect

Posted May 7, 2005 23:34 UTC (Sat) by ccyoung (guest, #16340) [Link] (6 responses)

you certainly know more about this than me.

but consider if I were to take a couple of week programming, and, using common sense in this profession, say, "it'd be cool if the user moved her mouse this way then that would happen," or say, "in this XML format I'll let the user define a macro that could have a dynamic effect on what the user sees." what if there were an unnamed company with unlimited resources that patented these ideas. are you saying I no longer "own" them? does the company now have right to come after me however it chooses because I applied commons sense to my profession?

this is patently absurd.

consider if you like to barbeque on weekends and have actually gotten pretty good at it. your innovation is to marinate your brisket and then freeze it a little before grilling to help set the juices. however, Kraft has patented this method. you're legally allowed to freeze your brisket only if you pay Kraft a royalty each time you light your charcol. say you own a steakhouse - Kraft comes to your door saying you don't even know how many pantents of ours you are violating every night straight off your menu - it really makes sense just to pay us this yearly fee.

there's the beef.

are you going to hire $50,000 for a patent attorney? no, if you own that steakhouse you're just going to pay. if you are in your backyard, you're just going to ignore those Kraft patents as being completely absurd.

forgive my lack of sophistication, but this sure as hell sounds like extortion to me. that the government might be complicit really makes no difference.

with all due respect

Posted May 8, 2005 18:09 UTC (Sun) by giraffedata (guest, #1954) [Link] (5 responses)

You bring up several ways the patent system isn't right, but it isn't clear that any of it amounts to extortion.

In your last paragraph, you hint that the barbecuer doesn't legally owe the royalties -- that if he paid for legal process, he wouldn't have to pay the royalties. If that's true, and Kraft knows it, then we have extortion. Kraft has a moral (and often legal!) obligation to leave him alone for free, but is offering to sell it. This has nothing to do with patents; this kind of extortion exists throughout the legal system.

But if Kraft really has a case, you have to dig deeper to find any extortion. You have to base it on a personal belief (which many don't share) that a person can't morally own an invention of this type. Much like many people believe one can't morally own, in one way or another, a person, a body part, or land.

With respect to some of the other problems you brought up: I am not a patent lawyer; most of what I know about patents comes from places like LWN reader comments. But I can tell you this:

US patent law requires an invention to be nonobvious to have patent protection. The US patent office seems to be largely ignoring that rule these days, but courts have been sticking to it better. If you can invent something by "applying common sense to [your] profession," it's legally "obvious."

The fact that independent invention doesn't excuse you from patent liability (i.e. if I invent something without knowing that you already did, I still can't use the invention) is based on the original purpose of patents referred to in an earlier comment: The patent protection is compensation for contributing an invention to the public (within limits). It's not a recognition of a moral right of an inventor to his ideas. The guy who gave the mouse invention to the public did his part; as a member of the public, your part is to pay him when you use it, regardless of whether you had the same idea.

I believe with the current state of technology, the public is getting a bad deal on most patents -- it's paying for inventions that would have been contributed anyway, because there would be no way to keep it secret and it cost practically nothing to invent.

extortion - a rose by any other name

Posted May 9, 2005 0:45 UTC (Mon) by ccyoung (guest, #16340) [Link] (1 responses)

Example One:

1. using your definition that an idea that any one of 100K hackers could have "appl[ied] common sense to [his/her] profession," it's legally "obvious", assume more than 90% of all software patents are nonobvious.

2. assume that corporation A collects these patents.

3. assume that corporation A has, for all practical purposes, unlimited resources.

4. assume you are Corporation B, a software house or company that writes software in-house.

5. assume that Corporation A tells you that you are violating their patents and that it would be in your best interest to pay for usage of those patents.

what are your choices of action?
a) take them to court and fight them over serval years at the cost of several million dollars, with your business dead in the water.
b) pay them off.

Example Two

1. assume you have a small but thriving restaurant in New York.

2. assume Mr Saprano visits you, telling you many restaurants have had many violations and, if you pay him monthly, he will arrange it so you don't have similar problems.

what are your choices of action?
a) take them to court and fight them over serval years at the cost of several million dollars, with your business dead in the water.
b) pay them off.

Your point is that, if it's legal, it's not extortion. My point is that, if I cannot show it's illegal, it doesn't matter.

My second point is that if I see someone hurt and I need to drive on the wrong side of the road to help them then I'll drive on the wrong side of the road. What's the discussion?

It's why I mentioned prohabiton - it was a collosal failure because people simply ignored it - and ignored it with gaity. Whenever I boot up my Linux it says, "have fun!"

extortion - a rose by any other name

Posted May 9, 2005 16:03 UTC (Mon) by giraffedata (guest, #1954) [Link]

Isn't example One the same as from your previous comment? So the analysis is the same. You hint that Corporation A's patents aren't valid -- otherwise, option (a) (taking A to court) wouldn't be an option. That being the case, there's extortion just like in the Soprano example. Corporation A is obligated to leave you alone for free, just as Mr. Soprano is obligated not to trump up charges against you, for free. Offering to perform the obligation for money is extortion.

The transfer of a patent from one person to another doesn't really change the morality of the patent at all. The inventor was paid by the public with a patent for disclosing his invention. The inventor converted the payment to cash by selling the patent to Corporation A. Corporation A is converting its investment to cash by enforcing the patent. The system's doing what it's supposed to do.

Your point is that, if it's legal, it's not extortion.

It wasn't that simple. I talked about moral, not legal. I drew a connection between the two, saying that the fact that something is legal is a strong indication that society in general believes it is moral. Society has caused patent law to exist and grow for hundreds of years. Lots of people must believe in it -- I.e. believe it's moral to demand payment for use of an invention.

My point is that, if I cannot show it's illegal, it doesn't matter.

I agree. It is extortion, and wrong, and often illegal, to file or defend a lawsuit when you know you're legally wrong, in hopes that the other side will find it cheaper to pay you than pay legal fees. This is not a patent issue. But I believe this thread started out with discussion of patents that are valid under present patent law.

1. using your definition that an idea that any one of 100K hackers could have "appl[ied] common sense to [his/her] profession," it's legally "obvious", assume more than 90% of all software patents are nonobvious.

I don't think it's germane to the extortion question, but: from what I've seen, about 2% of software patents are nonobvious.

My second point is that if I see someone hurt and I need to drive on the wrong side of the road to help them then I'll drive on the wrong side of the road. What's the discussion?

I agree. I didn't think we were discussing that.

"non-obvious" non-obvious

Posted May 10, 2005 0:43 UTC (Tue) by roelofs (guest, #2599) [Link] (2 responses)

That's not how I understand it from speaking to at least a couple of patent lawyers/attorneys. My understanding is that the "non-obvious" rule is decided on an almost algorithmic basis, one that could be described in terms of an automaton (my terminology). To wit: given as input all patents and publicly disclosed prior art to date, if an automaton could glue various bits together to come up with your "invention," it's obvious. Anything else is non-obvious.

I don't claim that either my memory, my understanding, or that of the folks to whom I spoke is correct, but at least in the latter case, this is what they do professionally, so I tend to believe them. On the other hand, even if everything I've said is fundamentally correct, there's obviously still plenty of room for interpretation on the part of the examiners (as I've found out the hard way on at least one occasion). One can also see a little more easily how a lot of stupid patents have gotten granted over the years.

"non-obvious" non-obvious

Posted May 10, 2005 4:11 UTC (Tue) by giraffedata (guest, #1954) [Link] (1 responses)

Yeah, that does seem consistent with the patents we see in the news. What I remember is some words from the one patent class I took 15 years ago. I distinctly remember the words, "a person skilled in the art" in the definition of obvious. Something like, "A person skilled in the art, faced with the same problem, would reasonably be expected to arrive at the same invention."

On the other hand, lets remember that all the silly patents we hear about are just issued -- I never hear about them actually standing up in court. The patent office may be taking a less-than-legal stance on the obviousness test, biasing itself toward granting patents.

"non-obvious" non-obvious

Posted May 10, 2005 15:18 UTC (Tue) by roelofs (guest, #2599) [Link]

I distinctly remember the words, "a person skilled in the art" in the definition of obvious. Something like, "A person skilled in the art, faced with the same problem, would reasonably be expected to arrive at the same invention."

Yes, I think that's more or less the exact statement of law (or whatever) surrounding patentability. But that just pushes the definition question back a step: how do you define "skilled in the art"? That's where the definition I gave comes in--someone who knows everything (that's been published) and can rearrange bits of it to make arbitrary new combinations but who is incapable of any creative insights, no matter how trivial. As poor as this definition sounds, if you think about it, it may be the best you can do--at least it's prescriptive, whereas almost any other definition of "skilled" is wide open to interpretation.

Difficult for a farm boy like me

Posted Jun 1, 2005 0:56 UTC (Wed) by wookey (guest, #5501) [Link] (1 responses)

Thank you for that set of explanatory examples. However, not being USian I didn't understand the distinction the last two are trying to elcuidate:
# For $1000, I offer to vote for your shareholder proposal (which I favor anyway). Not extortion.
# For $1000, I offer to vote for your zoning ordinance (which I favor anyway). Extortion.

Could you clarify why one of these is extortion and the other one isn't. I suspect the main problem is that I have no idea what a 'zoning ordnance' is - sounds like something to do with local government?

Extortion vs legitimate sale

Posted Jun 1, 2005 2:42 UTC (Wed) by giraffedata (guest, #1954) [Link]

"Ordinance" means statute. For some reason, statutes passed by local jurisdictions (city or county) are called ordinances. (Statutes, btw, are what most people call "laws," but lawyers recognize that law can come from places other than legislation, so prefer the more precise term "statute.").

A zoning ordinance is an ordinance that tells what uses of a piece of land are permissible. (It's called that because the form it takes is that it divides the city into zones -- this part is the residential zone; that part is the industrial zone, etc.) A zoning ordinance can shift wealth enormously, so the process is ripe for corruption.

A city council member has a moral obligation to vote for a zoning ordinance if he believes it is in the city's best interest. Therefore, offering to a developer to vote for it for $1000 is extortion. Remember the basic definition: offering to sell something you're morally obligated to give for free.

In a business corporation, shareholder votes are pure business. There's no morally right or wrong vote; it's all about the money. Shareholders vote to try to maximize their own wealth, and are free to sell their votes. And just as it's OK for me to charge $1000 rent for a building even if it otherwise would have been vacant, it's OK to ask $1000 for a vote even if I wanted to vote that way anyhow.

Difficult for a farm boy like me

Posted May 6, 2005 23:33 UTC (Fri) by njhurst (guest, #6022) [Link] (2 responses)

Perhaps software patents should be required to give a complete implementation to be released into the public domain on completion of the patent interval?

Difficult for a farm boy like me

Posted May 12, 2005 14:37 UTC (Thu) by zakaelri (guest, #17928) [Link] (1 responses)

From what I read above concerning patents, and the handful of patents I have seen before (maybe on the order of 2 or 3), I thought that was the point of the patent. Otherwise, I could patent "amino-based toilet bowl cleaner" and be done with it.

Then again, I believe that most people feel our patent system needs to be re-thought.

Difficult for a farm boy like me

Posted May 25, 2005 22:10 UTC (Wed) by njhurst (guest, #6022) [Link]

I think they have to have a description that others can understand, but I was suggesting a further requirement that an actually usable implmentation be included. That is, the actual source code used.