I like reading the SCOTUS hearing on Bilski [LWN.net]

I like reading the SCOTUS hearing on Bilski

Posted Feb 4, 2010 22:19 UTC (Thu) by rahvin (guest, #16953)
In reply to: I like reading the SCOTUS hearing on Bilski by hozelda
Parent article: Kuhn: I Think I Just Got Patented

Another issue is drawing a line on which types of patents are likely to violate the Constitution by not promoting progress (ie, if the liabilities side of the ledger is greater than the assets side).

Based on the court ruling on the Lessing Copyright challenge the SCOTUS would NEVER take this stand. They took the position that it's not their place to decide what limited or progress means, as that's a legislative task (to decide what progress is and what limited is). I personally don't think we will get a decisive ruling in Bilski, there are to many Amiscus briefs telling the court to sidestep the software issue and I expect them to do exactly that. As Bilski isn't a software patent (it's a financial method patent) I expect they will fully avoid the software minefield until a better case is brought before them, if that ever happens.

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The Lessig case!!!

Posted Feb 6, 2010 0:05 UTC (Sat) by hozelda (guest, #19341) [Link] (1 responses)

>> the SCOTUS would NEVER take this stand

Thanks for pointing that out. I found this: http://news.cnet.com/2100-1023-980792.html .

It's a good thing I decided not to rely on your word or on that article. So far I have only read a fraction of the ruling, but it's enough to point out some major differences.

Keep in mind I am not a lawyer and have not read very many decisions at all or studied the history of various decisions or even law itself to any significant degree. I'm also reading this quickly and still have a lot to read.

http://www.lessig.org/blog/archives/01-618o.pdf

"Petitioners are individuals and businesses whose products or services build on copyrighted works that have gone into the public domain."

These are people that depend on the supposed works of others, specifically, who depend on copyrighted works. I'll get back to this point below.

"They seek a determination that the CTEA [Copyright Term Extension Act] fails constitutional review under both the Copyright Clause's 'limited Times' prescription and the First Amendment's free speech guarantee."

There is no mention here of promoting progress or of patents. This case did not address the points I am talking about: promoting the progress and in relations to patents being passed today under today's rules and law, in particular, software patents.

"Petitioners do not challenge the 'life-plus-70-years' time span itself... Congress went awry, petitioners maintain, not with respect to newly created works, but in enlarging the term for published works with existing copyrights."

Lessig addressed a narrow issue.

The SCOTUS appeared not to want to question the actual numbers that Congress picks, but, in any case, Lessig was not arguing over that matter. The court tried to remain consistent with established precedent, namely the failure for such challenges to have occurred in the past when the terms were also extended. It might, thus, be realistic for someone to challenge aspects of the specific time duration of copyrights, perhaps on grounds that the duration extends past the expected time frame where a person wishing to leverage such work is most productive.

In any case, copyrights are not patents.

"The court also held that there are no First Amendment rights to use the copyrighted works of others."

Note, the "of others".

The patent situation is very different. You can easily argue and use examples where monopoly patent protection is being granted over inventions not conceived in any specific detail by the "inventor". Patents claims, and even the much more detailed invention details, are quite broad. Patent claims, which is what determines the bounds of infringement, are most certainly not a specific work in that we aren't protecting the text of the patent claim but are seeking to cover **every single creatable item** whose description might overlap with the description offered through the claim. I think this will be ripe to be struck down at some point in time. Software patents most certainly aren't being given exclusively to protect a specific existing implementation of a software product (as is the case for copyrights).

"Copyright, the court reasoned, does not impermissibly restrict free speech, for it grants the author an exclusive right only to the specific form of expression; it does not shield any idea or fact contained in the copyrighted work, and it allows for 'fair use' even of the expression itself."

This simply reaffirms some the points just made that the copyright case is over a very specific expression, not an idea. Even in this case, "fair use" exists.

As concerns the First Amendment, we see that we aren't talking about people defending their own right to create despite patents (or copyright), but are talking about the right to use specific things created by others. There is a real difference here. The court argues against the use of specific works created by others.

With patents, we are blocking the reuse of ideas, and this is reinforced by the failure to accept independent inventions as a legitimate defense. The court said they were against monopolies on ideas.

I stopped here because the differences seem so clear to me, and I wanted to post before too much time elapsed. The Lessig case was very different.

rahvin, you are going to have to try much harder if your intention was to discourage FOSS developers and users about what appears to be shaping up with Bilski.

Assuming you have an open mind, look at the Bilski transcript (again) to see that the Justices appear quite skeptical about the patenting of ideas and information.

A recent SCOTUS decision (corporate money in elections) also shows that this court is willing to reverse itself and that they respect individual rights significantly. [Unfortunately, they voted for the rights of some over the rights of others, based on you having control or not of a corporation with multiple shareholders]. Both of these suggest we can have hope for a strong ruling against software patents.

The Lessig case!!!

Posted Feb 6, 2010 0:56 UTC (Sat) by hozelda (guest, #19341) [Link]

>> There is no mention here of promoting progress

rahvin:

I should have read a little further. It appears Lessig conceded the view that promoting progress does not place substantive limits on Congress' legislative power.

I think it was a mistake to concede that point [perhaps Lessig did not feel he had sufficient backing or arguments at that time].

In any case, this was not a point that was argued (so it was best not to argue it rather than to argue it badly I imagine). The court relied on that agreement and on another variation of this from Schnapper vs Foley to conclude that this limitation also did not apply to Congress in that current case.

What may have been argued in Schnapper vs Foley was that it is assumed Congress can do what it wants without risking not promoting progress. However, we can conceive of many cases where monopolies gone rampant (and today's software patents, at least in some extreme cases, fall under this category) can hardly be argued by anyone to promote the progress.

What was the intention of those that wrote the Constitution? I don't know, but it doesn't seem consistent for them to have assumed monopolies, as Congress might feel like granting them, should be assumed to promote the progress and essentially help individuals or society. In particular, monopolies are clearly against individual rights (by definition), and this was brought up in the Bilski hearing by Breyer. The only reasonable and consistent interpretation of that clause, from what details I know and from using "common sense", is that promote the progress is to be interpreted as a real constraint on Congress.

Again, that point was not argued in the Lessig case and perhaps is due to be revisited, if necessary, under the context of the 21st century and software patents.

OK, so it does appear "promote the progress" was considered briefly in Lessig.

I disagree with your "NEVER".

I disagree it would be fairly unlikely for them to make a strong ruling in Bilski against software patents on different grounds (though the Justices did mention they might certainly not rule on too much),

But I apologize for missing the promoting the progress question in Lessig in my prior comment and effectively suggesting you might have been exaggerating a lot or even trying to deceive.