OT: Re: [Asterisk-Dev] writing a GPL G.729?

[Jayson Vantuyl]

On Wed, Dec 08, 2004 at 12:33:35AM -0500, Nick Bachmann wrote:
> Jayson Vantuyl wrote:
> >> I have NEVER seen ANY statement by a patent lawyer that the G729
> >> patents are not valid in some parts of the world. All I've seen is
> >> non-lawyers saying that.
> > I have NEVER seen ANY statement by your local prosecutor that you are
> > not a convicted criminal.
> That stands to reason.  I (and presumably you, as well) have absolutely 
> no idea where Eric lives and really don't pay attention to his 
> prosecutor/DA's statements.  As IT professionals (again, I'm making some 
> liberal presumptions here), we should pay some attention to patent law 
> and we have a higher-than-average likelihood of being working with 
> patent lawyers. 
> 
> > What does the above statement prove?
> That you have not seen my Eric's prosecutor say he was a criminal.  It 
> also suggests you're in the habit of making faulty analogies, but that's 
> more my personal observation than a proof.
Interesting.  The above statement was meant to illustrate that the
statement it was responding to was actually a faulty analogy (whew!).  I
find it ironic that it should be an indicator that I often MAKE faulty
analogies (i.e. disagreeing with some of my later points does not make
this a faulty analogy).  On the contrary, the above statement should
indicate that I am in the habit of HEARING faulty analogies.  There's a
world of difference here.

> > HOWEVER, I don't need to talk to a patent lawyer to know that a
> > patent isn't valid outside of its jurisdiction. That's the only
> > question you need to ask. IF there is no patent in Norway, then he
> > should begin a GPL'd project. In fact, he should pursue it avidly,
> > to generate prior art if anything.
> As Steven already pointed out, the ITU treaty covers this.  Also 
> remember that the PCT makes getting worldwide patents very easy.
Treaties do not make local law (or law enforcement).  Again, I question
whether there is enough in the treaty, in the laws that may have
resulted from it, and enough precedents in the Norwegian legal system to
support a legal attack on it.

> This is true (the length of time in the US is one year from the date of 
> any form of publication, but this varies by country), but I highly doubt 
> the owners of the various G.729 IP only filed for US patent protection.  
> After all, these patents are owned by MNCs who do business in just about 
> every country with a free-enough market.
That would be interesting to research--especially since it has been
determined elsewhere in this thread that there are multiple patents in
question.

> You can't practically license it it under the GPL:
Beyond practicality, it appears you may not be ABLE to license it under
the GPL.  There is a clause that states that any patent licenses must be
transmitted as well.  Since that would not apply, I think that
distribution under the GPL may not be possible!  Whether this is
intentional, RMS only knows.

> Finally, any free program is threatened constantly by software patents. 
> We wish to avoid the danger that redistributors of a free program will 
> individually obtain patent licenses, in effect making the program 
> proprietary. To prevent this, we have made it clear that any patent must 
> be licensed for everyone's free use or not licensed at all.
> [...]
> If the distribution and/or use of the Program is restricted in certain 
> countries either by patents or by copyrighted interfaces, the original 
> copyright holder who places the Program under this License may add an 
> explicit geographical distribution limitation excluding those countries, 
> so that distribution is permitted only in or among countries not thus 
> excluded. In such case, this License incorporates the limitation as if 
> written in the body of this License.
Is this necessary?  Wouldn't redistribution already be illegal in those
jurisdictions?  Would the distributor be at fault for the illegal
distribution since his license didn't cover it?  I'll have to ask a
patent attorney what kind of liability having that kind of license would
give.  The sort of "Should an encryption program's license exclude
France?  Would the French sue me?  Would they have a case?" line of
questions.

> I hope Albtelecom can offer reliable bandwidth.
IF publishing the source (not necessarily the binary) under the GPL is
legal in, say, the US.  What legal grounds does anyone have to prevent
it.  If I'm not distributing binaries, they would have to prove I was
using it, no?  If it were developed somewhere it was at least legal to
develop it, would there be legal grounds to sue, say, SourceForge for
holding the source?

> At least in the US, according to 35 USC 271:
> 
> (a) Except as otherwise provided in this title, whoever without 
> authority makes, uses, offers to sell, or sells any patented invention, 
> within the United States or imports into the United States any patented 
> invention during the term of the patent therefor, infringes the patent.
> (c) Whoever offers to sell or sells within the United States or imports 
> into the United States a component of a patented machine ... shall be 
> liable as a contributory infringer.
Would that apply to the source?  Somebody had said distributing SOURCE
to a software patent wouldn't be a crime.  Is that wrong?

> > Oh, and before anyone complains about developing and archiving
> > patented software outside the patent's jurisdiction...remember, those
> > are the rules of the game. Don't complain just because you don't
> > think it's "fair" when we play by them...
The above was a tongue-in-cheek response to a message elsewhere in the
thread.

> You should remember why patents were devised: so people could spend 
> money to develop novel stuff knowing they had exclusive rights for a 
> while.  Ultimately, patents provide incentive for R&D, especially for 
> smaller companies that can't afford to put a few PhDs on a project 
> without some assurance the company will be compensated for their time.
Great.  I also recall that the Gatling Gun was invented by a doctor to
make war SO horrifying that no one would use them.

What matters is what they are USED for--not what they were meant to do.

I don't think anyone can plausibly claim that patents enable a small
business to do anything anymore.  If someone with more legal resources
and more patents wants your patent, they will bankrupt you.

Anyone remember Aureal sound cards?  They were great cards.  They blew
Creative Labs out of the water.  Do you know what happened to them?
They were sued by Creative for violating a patent they didn't violate.
They won the suit!  Then the legal debt caused them to file bankrupcy.
Oh, and then Creative Labs bought them--and their patents!

Whether this is a failure of patents in particular or the legal system
as a whole, I cannot say.  One thing is for sure, the above argument
won't mean much to the people who really invent things.

Seriously.  Where are the companies that bankrolled the Linux OS?  What
about just a piece like ReiserFS?  What about the Python language?  What
about Asterisk?  Do those companies have patents on the components of
these programs?  I'm hard pressed to find any.  The fact is that the few
patented technologies you find in these programs are defensive and have
hardly ever been used.  And most of those developments weren't owned by
the companies that bankrolled it (when companies bankrolled it).  The
software was the benefit.

Certainly the authors care less about patents and more about the
copyright.  These people don't patent things to make sure no one else
can use them, then litigate.  They do care about people shamelessly
stealing their work.

It's not that hard to see that patents DO NOT DO ANYTHING USEFUL for the
bulk of inventors today.  That is why they have no actual moral value
but are instead a legal weapon for rich corporations that have very
little to do with actual innovation.

-- 
Jayson Vantuyl