Not all of us live in the US. I’m a Norwegian living in the UK, and so the US first amendment has little practical application for me.

Further, law does not define what is and is not censorship. Indeed, law is often used to support censorship. So the fact that some speech may not be protected by law does in no way say anything about whether or not limiting that speech is censorship.

However I think you also don’t get all of what I was trying to convey, namely that what is “functional” is not in anyway clear cut – you can’t carve out an exception just for “functional” speech that is nothing but arbitrary drawing of lines in the sand, and the risk is that you end up massively diminishing free speech protections with no gain for society.

This post is “functional” in that it triggers actions in our brains. More to the point, I could easily write a program that interpreted this post and took specific actions based on it – so excluding biological systems or arguing that humans aren’t like machines will make no difference.

A description of an idea, if written in a sufficiently formal language (in the sense that it is regular and unambiguous, not in style) can be completely non-functional for all but humans until someone decides to write a program to interpret it.

Is something functional only if no program exists to interpret it?
If not, then where do you draw the line? Must a program to interpret it be within reach of todays technology? Or be within reach of expected technological progress for the duration of the patent?

Now that is a slipper slope, and without avoiding it you risk essentially carving out exceptions that will allow patent holders to seriously stifle innovation as well as speech by not only preventing the dissemination of working software implementing “their” method in any existing or established programming language, but also articles and tutorials and all kinds of other material discussing the idea behind it and it’s implementation (because without including these, and much, much more, the carve out would be meaningless as it can be trivially worked around)

The problem here is in part that software engineers communicate formally when discussing ideas. We will often write out ideas in the form of pseudo-code – a “halfway house” between a programming language and whatever natural language we are communicating in. However, the lines between natural language, pseudo code and a “real” programming language is continuously getting blurred.

Different styles of programming, such as functional programming languages, for instance, will often look more like a declarative specification of a mathematical function than a description of a method.

Take this example, which implements quicksort in Haskell:

qsort [] = []
qsort (x:xs) = qsort elts_lt_x ++ [x] ++ qsort elts_greq_x
where
elts_lt_x = [y | y = x]

Is this functional? It can be directly compiled, but whether or not it is mentally translated into English in a declarative or functional style by a human reader is up to the reader. Witness these two alternative interpretations, written down based on my understanding of the code above:

“Quicksort of the empty set is the empty set.

Quicksort of a set consisting of the first element, let us call it x, and the following subset, let us call it xs, is an ordered sequence consisting of the quicksort of all elements in xs less than x, x and all elements in xs greater than or equal to x.”

vs.

“Quicksort takes a set as input.

Check if the set is empty, if so return the emtpy set.

Extract the first element of the set and name it x.

Iterate over the remaining elements of the set, and for each of the elements check if it is less than x, if so add it to elts_lt_x.

Iterate over the remaining elements of the set, and for each of the elements check if it is greater than or equal to x, if so add it to elts_gt_x.

Return the concatenation of the quicksort of elts_lt_x, x, and the quicksort of elts_gt_x.”

The former just describes the idea itself. There is nothing more to quicksort. There are a lot of implementation details and a lot of different ways of implementing it that looks different to the trained eye (as an example, look at the C version at http://www.haskell.org/aboutHaskell.html – conceptually it does exactly the same steps as outlined in my first explanation). Now, quicksort is simple, but any software implemented idea can be described in a similar style.

Go back and take a second look at the way I described quicksort. The first is declarative. It says what quciksort is, and nothing more. The second describes the process of executing quicksort.

Nevertheless, I purposefully wrote them both formally enough that it would be trivial to design a “programming language” using a subset of English that would turn either or both of the above descriptions into valid, functional programs that could be executed.

Are there anyone here that thinks neither of the two should be protected speech? If so, let me know, and I’ll device an even less apparently functional variation, or maybe I’ll turn it into a poem or whatever it takes to put across the point that you can’t draw a meaningful line between functional and non-functional.

Language is functional if interpreted by something that gives it function, not as a result of any specific property of the speech in the language itself.

The moment we allow software patents and try to draw a line on what is “functional” enough to be considered software, we have lost a major amount of protection of speech, and if there are to be any meaningful protection of these patents, the amount of free speech protection we will have lost will be much more extensive that most people would ever dare imagine.

Software is data. Programs are data. English literature is data. The only thing that defines any of these as something more – as information or programs or art, or political speech, – is who or what is interpreting them.

Vidar

I think this is the best quote from this whole thread. I’m a software engineer at heart, though I keep getting distracted into management. I started programming at 5 years old, in BASIC on a VIC 20. For me, writing software was and is about expressing ideas as much as about function. That was what fascinated me: I could communicate with the computer; express ideas, give it orders, and see it do what I told it to.

I learned to speak to it in it’s own languages just as I would eventually learn to communicate with English speakers through their own language, even if both programming languages and English have different limitations of how to express an idea than my native Norwegian.

A significant part of software engineering is about more or less mechanically (depending on the quality of the description) translate ideas into something a machine can interpret the same way as a human interpreter would translate speech from one language into another that can be interpreted and understood by the intended recipient.

The software engineering ideal is a world where software is “smart enough” to allow any computable expression of an idea to be interpretable by a computer directly from natural language.

But even though we are far off from this today, it creates a fundamental problem with the idea of software patents:

Given ANY idea representing a computable process, and enough time, it is possible to device a natural language expression of that idea in a form sufficiently formal that a compiler or interpreter can be written that will turn that expression of an idea into a functional “machine” when compined with a general purpose computer.

Now, the question is: Can such a description violate a patent?

If no, then would this change depending on whether or not a compiler would actually exist for the language in question?

If no, then would it change depending on whether or not the description was originally written with the intent of describing the idea completely to another human?

If the answer to any of these are yes, then software patents are censorship: They would prevent me from expressing an idea by describing it in sufficient detail that someone can implement it, because regardless of the form of the description, a compiler or interpreter could be written to translate that description either into a “machine” or directly into the execution of the process described.

Something the software patent proponents keeps overlooking is that software is nothing more than the expression of an idea in a form that is complete, i.e. sufficiently detailed that it is possible to reproduce the steps of the method based on the description.

In other words, allowing software patents means allowing the monopolisation of a certain set of ways of expressing an idea.

The main problem with this, as others have pointed out is that either this set is limited enough that software patents turns out to be nothing more than copyright (i.e. protecting a specific expression and works that are substantially similar), or this set is broadened sufficiently that it prevents all expression of the idea except in general terms or for purposes explicitly denied patent protection.

The latter is a line that is rapidly moving towards free form natural language. It is only a question of time before we have systems that will build many forms of software automatically from free form natural language interactions with people.

Personally I believe that any expression of a method, and idea, or anything else that can be executed directly or with the help of other software on a general purpose computer should be excluded from patentability entirely…

It is expression. It is speech. I can express ideas better in C++, assorted assembly languages and half a dozen other programming languages than what I can in my halting German or French. I can convey those ideas easier to many native speakers of those languages easier through those programming languages than through natural language.

Vidar

A clear point should be addressed first.

Patents are bad. Bad. Bad Bad. They deliberately create intelectual monopolies. As and of themselves that have no merit what so ever.

Anybody who thinks patents of themselves are a good thing is seriously ill informed.

The only justification for a patent’s existence, and the patent system that supports it, is that on balance the patent system achieves more good than the harm it does.

That the patent system overall achieves a net benifit is highly questionable.

(It kills far to many people for one thing. Yes it saves people too. That the people it saves are rich first world citizens, and the people it kills are poor third world citizens does not excuse its casualties.)

However, the balance of good to harm that the patent system causes can be substantially mitigated by trimming the patent system such that it does not extend to areas where it’s effects are most harmful. If this trimmimg cannot be achieved then the patent system very swiftly becomes an untenable burden, and will be done away with. Patent attournys and other appologists take note.

The original formulation of the patent system delineated some areas that were excluded from the system. Generally these are things like mathematical techniques, observable facts, exercise of pure intellect. These are not simply arbitary exclusions, they are areas where the balance of benifit of patentability is clearly unfavourable. Including them does not streangthen the patent system. On the contrary it raises the overall burden of the system, and detracts from those environments where the balance of burden and reward are more balanced.

Software is another such area, though the original formulation of the patent system did not include it, since software development is a very recent activity on the scale of patents.

It is a particularly sensitive area because it is creative and has a low cost of entry. The majority of the first world public up to present are insulated from most of the harm that the patent system inflicts. Patents on pharmaceuticals or in heavy industry are not something that the public can normally incur liability for.

Unfortunately this is not true for software. Anyone who writes software for any purpose even if they do not distribute it, can incur liabilites for software patent infringement. If software is patenable then simply by setting up a spreadsheet a user may inadvertently breach a patent, and fall liable to the full draconian powers of enforcement. No knowledge of the existance or applicability of the patent is required, no plagurism necessary.

Initially Patentability of software was not an issue. It was viewed as a mathmatical process, as pure intelectual endevour. As such it was outside the purview of patents. The appropriate protection of such an endevour is copyright. This appropriately protects the work of individual contributers. It protects expression, not ideas. If I have never seen your spreadsheet, I cannot, with mine, breach your copyright.

However at the core of the patent system is a contradiction. An approprite “finate state machine” (computer) backed by sufficient computational power and appropriate peripherals can simululate any other class of machine to to any level of accuracy required. So if I have a patent on a “machine”, a computer with approprite software and peripherals can substitute for it.

In fact in many many cases the “machine” that is now patented is a computer in a box with its peripherals. That this computer and its peripherels and its software are often implemented on a slip of silicon has allowed the patent system to continue on its happy way, patenting such “machines”.

Unfortunately the holders of such patents are restive. They are unhappy that their patents can be bypassed, and lobby for their patent on a “machine” to encompass the same machine implemented in software. They have at least some reasonable concerns. The performance of general purpose computers is rising rapidly, the cost is falling. More and more patent “machines” can simply be replaced by software. Some of us view this with satisfaction, since devices that simply represent “software in a box” do not justify patent protection, copyright and competition are much more satisfactory spurs for innovation in these circumstances, but the case is at least arguable.

Riding on the back of this issue though, which has at least a shadow of legitimacy, is a very unsavory parasite. Established software manufacturers are threatened by the empowerment of the general public implicit in the rising power of the computers available to the them, and the associated availability of freeley reusable software designs. Bringing software within the clutches of the patent system would effectivly disempower the public from creating and using their own computer software designs, by attaching an undefined and arbitary liability to anybody writing software for themselves.

Based on the already dubious argument of protecting existing hardware patent holders from competition from more effective means of providing the service that they have patented, wholesale patentability of software is being rammed through the EEC beaurocracy. This development is viewed with disgust by the communities that create the majority of software, small businneses and the open source community.

Aside from the patent industry itself, which seems to lack any comprehension of the overall long term impact on their own future of expanding patentability to areas where its effects are obnoxious, the only real protagonists for extending patentability into software seem to be the established telecomms suppliers, threatened with having their dedicated hardware substituted by general purpose computing kit, and the afore mentioned legacy software suppliers trying to preserve their doomed monopoly.

Crys from the patent community, that sacrificing software to patentability will save us from even more noxious options, like buisness process patents, are simply spin. Business process patents do not have the potential to impact the general public. They will be removed because they significantly affect businesses. They are simply fodder for the patent lice to use to extort money from real businesses, and will not survive the coming backlash in the US, let alone become established in Europe. Software patents are aimed at the general public, and the creativity that small business can achieve in a patent free software environment.

The patent system is already obnoxious. It is already allowing patents on observable fact (DNA sequences). It is already attacking mathmatics, (patent “methods” as a means to control mathmatical algorithams).

The patent system is already overdue for serious trimming. Extending patentability to software is clearly a bad decision, and will eventually be reversed. The only real question is how much damage will be done in the process, how much initiative will be lost to the countries sensible enough to nod in the direction of software patentability, and run like hell in the opposite direction.

A scheme that discloses concrete industrial processes that enshrine significant development and technology, the disclosure of which provides measurable benifit to the community at large is one matter.

Backdoor patenting of mathmatical algorithams and observable data is another. And schemes to limit the freedom of action of the general public and their freedom to develope, use and play with information technology is abuse so blatent as to be almost unbelievable.

Given the level of obnoxiousness now being demonstrated by the patent system, its clear abuse by entrenched monopolies, its unpopularity with people, (small) industry, and considerable elements of government, the reasonable question to ask is “what enhancements are needed to the the existing anti monopoly legislation to make patents illegal?”. Grubbing out the patent system, root and branch, may be the only way to restore some degree of balance.

Harry

—> First legal risks, then defense funds. Unnessasary. Better solve the root of the problem

2) Impose a hefty fine of say 5% of income (or 1M�) for a the software patent owner, the involved patent lawyer and the patent office for each granted patent that is overturned because of obviousness or because of prior art. The collected fine from all involved parties should be paid to the above defence fund.

—> creates an incentive of the opposite for the patent office. You confirm that priority of software ideas has any meaning for the market.

3) Impose criminal sanctions against patent owner/lawyer/office that has patented anything without knowingly(!) revealing prior art that they where aware could potentially invalidate the software patent.

—> prior art = what is in the patent database of the Patent Offices, secondly, what was published and documented. In the latter case you have to plea for changes. The US “first to invent” system envokes a lot of illusion about the realities of prior art.

4) Restrict the lifetime of software patents to max 5 years.

—> Impossible for several reasons. 1. Patent law is not designed for such periods e.g. granting procedures take 3 years minimum.

5) Software patent owners must actively use the patents for development or production in order to keep them (hereby excluding patent terrorists that only seeks patents in order to sue other companies).

—> How to? Probably even patent trolls can “implement” thei “inventions” as demonstrations.

6) Make it illegal for large software companies like MS or IBM to join in cross-licensing “software patent cartels” that leaves the rest of the industry at their mercy and creates an anti-completive environment where only the cartel members can survive.

—> such Patent cartels are needed, cross-licensind is necessary to create a swpat free zone for them to continue their work. patents give no positive right. If your patented object infringes the patent of a competitor you have to cross-license or no one can build its product. SMEs cannot take part in that game.

If the above could be made law, I would support software patents.

—> fix law, do not “compromise”. The real question is with whom shall you compromise? With patent attorneys? With the patent office?

Well, the EPO Board of Appeal changed the interpretation of the EPC and granted software patents. It therefore exceeded competence. Decisions such as IBM/computer program product merely were a peverse reinterpretation of law. The diplomatic conference did not change the EPC and the EPO continued with its pratice.

Currently many courts such as the BGH often do not follow the EPO teaching or “reeducation”. Under a EU directive which codified EPO pratice this would be different.

Note that the EPo could start to grant whatever they want, interpret the law by their borards of Appeal as they wish, there is no parliamentary control of the EPO. Even a EU directive will not change the EPO pratice but will confirm unenforcability of software patents in the hope the EPO will follow in its granting pratice.

Axel: are you being merely wrong, or wilfully deceptive, when you claim that “Stallman’s Utopia” (hereby SU) would necessitate the anullment of all computer-implementable inventions? I ask you this because you show a notable knowledge of the matters of fact with respect to the current situation on patents, and so it both surprises me and disturbs me to hear you making this point.

Imagine a patent like so: Method of cleaning up an audio signal comprising the use of an analogue to digital converter, the application of a low-pass filter and the use of a digital to analogue converter to recover the audio. (Imagine this would work, and be non-obvious and so on.)

First, can this be implemented by a computer? Sure, you have AD and DA converters on computers and the signal processing of a low-pass filter is do-able in a general purpose computer. Second, does this mean that, for SU to be in place, this patent must be null? No. There are quite a few ways to deal with this, and I’ll only mention a simple one: it is simple enough to legislate that software, either in its writing or in its use, cannot be said to violate patent claims. Simple as that. Does that make the patent useless? Not by far, since any implementations in hardware are still covered. Does that reduce the field of application of the patent? Yes, and for endless reasons which we have gone to this is not necessarily a bad thing. Why would it matter, some may ask? Something which is thus patented could be worked around with software, and the patent would be of no benefit. The truth is that for many signal processing applications software is not fast enough. Many things simply cannot be done in general purpose computers, for reasons that are varied: power requirements, portability requirements, price, performance, reliability… People involved in signal processing know or should know that much. An FFT filter, for example, can be done in software on a general purpose computer, but it can be done significantly faster in hardware. For this reason we have expensive video cards, sound cards, and we don’t use general purpose computers to do heavy-duty routing tasks. QED. A way for the hardware industry to keep its hardware patents and recover investment, insofar as hardware industry and without interference with the software world.

In addition, even though I would personally support such a law, since I believe that SU as defined by you (a world in which tinkering commercially with software can break no patents) is something I find desirable, the FFII does not agree with me. In fact, check this analysis on technicity requirements. It shows how different versions of the technicity requirement in the directive would give different cover to subject matter, and the FFII proposal does give subject matter cover to some computer-implemented inventions that clearly have to do with hardware and forces of nature, whereas the Council comrpomise (?) proposal is maximalist and would cover things like compiler techniques. This analysis is based on the UKPO (UK Patent Office) workshops conducted to study this issue, populated among others by patent lawyers who, one expects, know what things would be covered under what wordings. So it is not true, either, that FFII’s position is equivalent to SU, and saying that is dissinformation. You accuse the antiswpat camp of dissinformation, while you seem to ignore and minimize the points in their favour. Another interesting fact is that the people who are requesting patent protections for software can be divided in roughly 3 groups: 1) hardware companies such as Siemens or Ericson, and in my view with some good reasons, as you were claiming, 2) patent lawyers, for what one would imagine are entirely selfish motives (or not, hard to tell, but the suspicion is there) and 3) big software companies represented by people such as the BSA and EICTA. Isn’t it interesting how the legitimate concerns of hardware companies in the business of signal processing and so on can be so easily “hijacked” by other interests which are clearly less benevolent and justified?

I get the feeling, though, that if Axel and me would be placed in a room with a million years of time we would not reach an agreement on these issues. I am not biased (I think) by selfish reasons and I want to believe that he is not either, and so I leave it at this.

As I said the inner nature of the economy is cooperation and not competition. (How can a trading agreement be otherwise?) This means that Free/Libre Open Source Software is the first implementation in reality of the inner essence of economy. This is not utopic. A utopia is an idea which can never be implemented but an idea in accord with the sustaining impulse of economy is precisely the opposite of utopic. FLOSS is the first model of what, ultimately, the whole economy will be in its healthiest, most natural sense.

Therefore it is the anti-swpat lobby which most has the world future in its heart.

This would have been better implemented by the English speaking nations, USA especially. This is because the English speaking have a rather instinctive intelligence which lends itself very well to the economic process. Since the USA has failed to initiate the re-spiritualisation of the economy (its transformation from overtly competitive to cooperative) then it has fallen to Europe to take up this essential challenge. Swinging the UK politicians behind it I therefore see as the greatest challenge.

Competitive economics arose as an effect of the intensifying of individuality. Now that society is crumbling under the force of this change (look down your own street or in your own newspaper) then the real object is to re-build community consciously.

By using the word ‘utopia’ Axel was clearly referring to the enormous difficulty in changing to cooperative economics. It is not impossible but nothing, literally nothing, will ever change until the idea becomes current that when at work you are not working for yourself (even though you might enjoy it) but for those around you to be able to do their bit. The whole strength of the economy rests upon the fact that the ultimate product is very little for the benefit of the producer but for those unknown people who receive it.

Let me go back to first principles. All societies are different or have a national character. Therefore to explain society the theory must be originally differentiated within itself. I see it like this:

Society is made from the relations between people and these have three forms:

those for the sake of the self
those for the sake of both
those for the sake of the other

Therefore there are three genera of interarticulating processes at work in all societies. Differences may now be accounted for by the change of emphasis between genera in one society to another.

Since all ideas (including inventions) only ever manifest as ideas upon the platform of human subjective consciousness then culture comprises all those things done for the sake of the self. Every idea is thought of by some person first.

Science retains the ideas in the ideal form and propagates them through language. (Language is the means by which we know that we have ideas.) Art implements the idea in concrete form. (Technology is an art form.)

Those ideas for the sake of both are defined as political rights. (Including patent and copyright which do not properly speaking belong to the economic world! as I explain below)

Acts and relations for the sake of the other comprise the whole economic sphere. In its esssence or substance the economy is therefore Cooperation and NOT competition!

How can this be you will ask since in reality the economy IS competitive? At which point we have to understand the form of society? What shapes the substance into what we see before us?

In all human relations people bring their whole consciousness to it. It follows that societies have the form of a human soul. This in turn means that the real existence of society is shaped by the way that we think! If enough people think that the economy is or should be competitive then it is or will be. If enough think that it should be more cooperative (free software/open source) then it will be! It is only necessary to win the argument of ideals to put those social forces into motion which in so many years will alter the reality of society.

Most theory today sees society as monolithic, undifferentiated in principle. This leads to the domination of society by the economic sector. But in this sector no person matters, no individual counts for anything in themselves – only culture can provide that fundamental human hunger.

Thus the answer to your is actually, Yes! These are the only two choices under present understanding. BUT it has to be realised that the three genera are not merely abstract ideas but actual powers active in society. Deny any one of them and it will assert itself, eventually, in an uncontrollable manner.

Best Wishes