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_______________________________________________________
| |
| PROGRAMMING FREEDOM - online edition |
| league@prep.ai.mit.edu |
| |
| June 1992 -==- Volume I Number 4 |
| |
| The Electronic Newsletter of |
| The League for Programming Freedom |
| 1 Kendall Sq #143, POBox #9171, Cambridge MA 02139 |
| Editor: Spike R. MacPhee (spiker@prep.ai.mit.edu) |
|Assistant Editor: Andy Oram (oram@hicomb.hi.com) |
| Reproduction of Programming Freedom via all |
| electronic media is encouraged. |
| To reproduce a signed article individually, |
| please contact the author for permission. |
|_____________________________________________________|
<><><><><> TABLE OF CONTENTS <><><><><>
An analysis of the Congressional OTA Report - Simson Garfinkel
LPF publicity: Cons, media mentions, & volunteer efforts
Patent law "harmonization" Congressional bills introduce
LPF News - 50% membership increase; voicemail down temporarily
Quorum Files Declaratory Judgment Action Against Apple Computer
MacBlaster game, item noticed by Christopher Glaeser
LPF email lists - what they are for
Apple-Microsoft/HP suit news
LPF Boutique: Materials Available from the League
--==--
<>An analysis of the Congressional OTA Report - Simson Garfinkel<>
Report on "Finding A Balance":, the Congressional Office of
Technology's 1992 report on "Computer Software, Intellectual Property
and the Challenge of Technological Change."
On May 1 the Congressional Office of Technology Assessment (OTA)
issued its long-awaited report on the impact of copyright and patent
law on computer programs. This 228-page report is the most
comprehensive description to date of the issues of primary importance
to The League.
The OTA's mission is to analyze policy questions pertaining to
technology in an objective and bipartisan way - not to make policy
recommendations. For this reason, the OTA's report does not conclude
if patents and copyrights are "good" or "bad" for software or the
country as a whole: it simply provides an analysis of the current
state-of-affairs and outlines policy options available to Congress.
The OTA's report is therefore likely to be at the heart of any future
action taken by Congress on these matters.
"Finding A Balance" is the last in a series of reports that OTA has
been issuing on intellectual property law. Other reports have looked
at the electronic redistribution of information ("Intellectual
Property Rights in an Age of Electronics and Information," OTA 1986),
the role of patents in the field of biotechnology ("New Developments
in Biotechnology: Patenting Life - Special Report," OTA 1989), and
the impact of home copying ("Copyright and Home Copying: Technology
Challenges the Law," OTA 1989).
THE LEGAL ENVIRONMENT
Until now, the ways that copyright and patent law has been applied to
different parts of a program in different ways. Nearly all of these
determinations have been made in the courts. Most observers feel that
the courts are the wrong place for these decisions to be made.
Indeed, different courts around the country have issued different,
often contradictory, rulings about the extent to which copyrights and
patents affect the writers of programs.
The problem, says OTA, is that there are elements of computer programs
that are like literature, and apparently covered by existing copyright
laws, while there are other elements that smack of invention and
should therefore be covered by patent laws. OTA points out that
software is the only thing in American society that can be covered by
copyright, patent and trade secret laws at the same time.
The report focuses on four main elements of computer program:
* The program code itself
* The user interface design
* The program's external design
* The program's function
It then analyzes how copyright and patent law are affecting the
development of programs. Finally it concludes with possible policy
options for Congress.
APPROACHES
There is no question today that copyright and patent laws are in a
state of flux with respect to computer programs. But there is a real
question about the way that the problem should be addressed.
Today there are two schools of thought in the United States of how the
situation should be fixed: one school of thought is that Congress
should clarify the ways in which copyright and patent law affects
computer programs. The second school holds that Congress should create
a new "sui generis" approach that deals specifically with computer
software.
The OTA disagrees with the statement that "the majority of legal
experts and firms in the industry take the position that existing
structures like copyright and/or patent are adequate to deal with
software." Case law will evolve in the courts, OTA says these experts
contend, and "sui generis approaches risk obsolescence as the
technology changes."
Instead, OTA says, "despite the advantages, there are questions as to
whether this process of accommodation can - or should - continue
indefinitely. With respect to software, there may be a point where it
becomes preferable to complement or substitute ... the existing
structures, rather than extend the scope of copyright to fit certain
aspects of software," (p. 8).
COPYRIGHT
OTA first tackles the question of copyright. The issue of primary
importance, says OTA, is to prevent the wholesale pirating of
completed computer programs. The straightforward way to do this is to
treat a program as a literary work. This approach is well-established
in both US and International law. Nevertheless, says OTA, there is
still a great deal of software piracy - particularly overseas.
Beyond the question of verbatim copying, there is a "fuzzy" line as
more and more aspects of a program's design and function are covered
by copyright law.
One option for Congress, says OTA, would be not to act and let these
matters be resolved in the courts. A way to speed that process would
be for congress to establish a special "fast track" inside the court
system for intellectual property litigations.
If Congress does want to do something, one of the first things that it
could do, says OTA, is to clarify the scope of copyright to either
specifically include or exclude "one or more aspects of software, such
as:"
* computer languages
* algorithms
* design specifications
* user interfaces.
* other interfaces.
Congress could do this by:
* Expanding upon the Copyright Law's current language on "subject
matter of copyright" by saying that the above are or are not
copyrightable subject material.
Another option, says OTA, would be for congress to exempt computer
programs from copyright and make them subject to new "sui generis"
laws.
Although not an issue of primary concern to the league, the OTA report
also covers the question of reverse engineering. OTA calls upon
Congress to specifically address the question of reverse engineering
-- either through legislation or cooperation with industry -- and
clarify whether reverse engineering is considered "fair use" under the
copyright law.
OTA suggested that Congress might want to develop a technique for
giving "limited rights for incremental software advances that would
not be patentable or for aspects of program functionality that fall
outside copyrightable subject matter."
PATENTS
Computer-related Patents pose a special problem to the PTO, OTA says,
because the Supreme Court has ruled that mathematical algorithms may
not be patented but processes - including processes that involve
computers - may be patented.
"The long-term question of whether patent (or patentlike) protection
for computer processes and/or algorithms is socially desirable is
separate from the related question of how well current U.S. Patent and
Trademark Office (PTO) procedures are working now," (p. 10).
On the question of whether or not the PTO procedures are working now,
OTA concludes that they aren't.
OTA states that the biggest problem preventing the PTO from carrying
out its current mission is a problem of dealing with prior art. PTO
is forbidden from issuing patents unless they are "non-obvious" to
practitioners in the field and "novel" - that is, have never been
implemented before.
The LPF believes that they are mistaken--while this problem does
contribute to bad consequences, even a perfect awareness of the prior
art would at most eliminate a fraction of them. Rms has written an
article relevant to this that was in Computerworld and it will be in
our next issue.
Because of PTO's problems, OTA says, patents have been issued that are
neither non-obvious nor novel.
The PTO has "serious" problems, OTA says, including:
* Examiner training and turnover
* Length of pendency periods (from filing to issuance) for
patent applications.
* The backlog of applications
* The quality and extent of the prior art database.
PTO's problems quickly become those of practitioners in the field,
says OTA, because they create an uncertain economic environment in
which to operate. At the root of this uncertain environment is "the
long timelag between patent applications and issuance, compared to
fast-moving software life cycles." (p.7) Programs can be conceived,
developed and brought to market by one company between the time that
another company files for and is awarded a patent. OTA calls such
patents "land-mine patents."
To solve these problems, OTA says, the patent office could "fill in"
its database of both patent and non-patent prior art. OTA recommends
that the PTO could revise its electronic search system so that
examiners can easily pull from the database all software-related
patents (currently, OTA says, this is impossible to do). PTO could
reclassify its patents in the computer arts. The OTA recommends that
PTO may want to perform this reclassification and filling-in in
conjunction with the computer industry.
One way to eliminate "land-mine patents" - patents that are filed
when the technology is new but granted many years in the future -
suggests OTA is to require the PTO to publish all software-related
patent applications published after 18 months, whether or not the
patents were issued.
* long-term issues
The OTA report is much hazier on whether patents for software are a
good or bad thing. "Some members of the software and legal
communities believe that software-related patents will tend to stifle,
rather than encourage, technological progress," says OTA.
In one footnote, OTA reprints a letter from Robert S. Boyer (Professor
of Computer Sciences, University of Texas, and an LPF member)
recommending that "patent law should be clarified to the effect that a
patent is never infringed merely by the use of software on a
computer."
OTA notes that "protection of software-related inventions and
algorithms by patent is a recent development and is controversial."
OTA states that the meaning of the term "mathematical algorithm"
(which PTO is forbidden to patent) "has been the subject of
considerable discussion and debate." Algorithms are not
"mathematical" if they can be stated in terms of operations on things
in the "real world."
"Over the past decade, patents have been issued for software-related
inventions such as":
* linear-programming algorithms
* spell-checking routines
* logic-ordering operations for spreadsheet programs
* brokerage cash-management systems
* and bank-college savings systems
"To some industry observers, there appears to be variance--or, at
least, uncertainty on their part--in how PTO guidelines are being
applied during examination," (p. 32).
OTA doesn't reach a conclusion; instead, it always falls back on the
technical problems currently facing the PTO in deciding whether or not
software is "novel" and "non-obvious."
OTA asked PTO to walk it through a typical software-related patent
application. PTO refused.
OTA identifies three different policy issues regarding software
patents:
* Statutory Subject Matter for Patents
"To reduce uncertainties and clarify legislative intent, Congress
could explicitly address the question of patentability for
software-related inventions and for certain algorithms," (p. 32).
This would be a far more difficult problem than defining the scope of
copyright, says OTA. "The term 'software patent' does not correspond
to any PTO category," (p. 32). Nevertheless, Congress could:
"Option 2.1: Refine the statutory definition of patentable
subject matter to provide guidance to the courts and PTO. Legislation
might address the extent to which processes implemented in software or
"mathematical algorithms" are or are not statutory subject matter.
Legislation might also address the issue of special exemptions, such
as for research and education.
"Option 2.2: Exclude software-related inventions and/or
algorithms from the patent law and create a special, sui generis
protection within a patent framework for some inventions. This latter
might have a short term, lower criteria for inventiveness, and/or
special exemptions from infringement"
* Prior art and Examination Quality and Timeliness
On the question of prior art, OTA says that the database of prior art
must be filled in. They suggest:
"Option 2.3: Encourage establishment of a supplementary
repository of nonpatent prior art, either public or private."
OTA also outlines three ways that PTO could improve its internal
process, including developing a new automated program for
cross-indexing and retrieval of patents, improved training and
funding, and increased input from the software community.
SUMMARY
Instead of seeing software patents and look-and-feel copyright as an
issue of free speech, OTA's report takes a very conservative approach:
the current system isn't working in a fair or uniform manner.
As the title of the OTA's report indicates, the agencies biggest
concern is finding a balance and presenting options for congress.
This report presents Congress with many policy options that are
diametrically opposed. For example, it says that Congress could
specifically exempt programs from copyright or it could strengthen
copyrights on programs.
To order your own copy, send $11.00 (international customers add 25%)
to:
Superintendent of Documents
P.O. Box 371954
Pittsburgh, PA 15250-7954
fax: 202-512-2250
Payment may be in the form of check, payable to Superintendent of
Documents, GPO Deposit Account #, or VISA or MasterCard (be sure to
include your expiration date and authorizing signature.)
--==--
<><> LPF publicity: Cons, media mentions, & volunteer efforts<><>
Send in any LPF mentions or volunteer efforts and we'll list it.
April 13: Unix User's Association of Southern California - software
patents speech by Paul Eggert (eggert@twinsun.com)
April 27: Computing Professionals for Social Responsibility, LA
Chapter - software patents speech by Paul Eggert.
April 27-30: XWorld Conference and Exhibition, New York - LPF
materials brought by David B. Lewis, uunet!craft!david@uunet.uu.net
--==--
<><>Patent law "harmonization" Congressional bills introduced<><>
Electrical Engineering Times, 4/27/92, p. 32, has an article on bills
introduced into Congress for patent law "harmonization". These are
supposed to bring us in line with the rest of the world. The major
changes are:
1: We change the law from "first-to-invent" to "first-to-file".
Apparently some lip service is being paid to the notion of
protecting an original inventor from being shafted by a
quick filer, but exactly how this will be managed is not
clear.
2: Patents will be make public 18 months after the application
is received, instead of being help privately until being
granted.
3: The term would change from 17 to 20 years. The term would
start on the filing date instead of the date of issue.
4: An expedited patent search system so invalid patent
applications can be located before the application is made
public in 18 months.
The article doesn't even try to guess what the chances are of this
bill passing, although it does say "Even though the U.S patent system
seems to be the odd man out in the international arena, there is no
huge pressure for change in the United States." Sorry about that...
Summary by Mark R. Nelson, 73650.312@CompuServe.COM
--==--
<><><>LPF News - 50% membership increase; voicemail down<><><>
The active membership, people who have renewed in the last year, has
increased from 450 at Christmas to 689 as of June first. This is a 53%
increase in less than a half-year. Thanks to you all for the recruiting
and publicity efforts that have made this possible.
Our voicemail number is temporarily down; the subcontractor who
provided voicemail service to our snailmail mailbox company abruptly
went bankrupt; we are attempting to recover the number from them and
provide more reliable service to you without obsoleting our stocks of
LPF materials with the voicemail number on them.
--==--
<> Quorum Files Declaratory Judgment Action Against Apple Computer<>
Lawsuit Seeks Relief From Apple Allegations Of Copyright, Patent
Infringement - A press Release from Quorum Software Systems, Inc.
Menlo Park, Calif., May 12, 1992 - Quorum Software Systems, Inc. today
announced it has brought legal action against Apple Computer, Inc.
(Cupertino, CA) to counter unsupported allegations of patent and
copyright infringement. Quorum's lawsuit stems from recent letters in
which Apple accused Quorum of infringing its intellectual property
rights, and revoked Quorum's privileges as an Apple Certified
Developer.
Additionally, the complaint seeks redress for Apple's accusation that
Quorum, in helping independent software developers (ISVs) migrate
their Macintosh-compatible applications to other platforms, induced
those ISVs to violate licensing and confidentiality agreements with
Apple. Apple's assertion implies that developers have knowingly or
unknowingly included Apple proprietary information in their
independent source code. Quorum believes Apple cannot assert any
ownership of application source code created by independent software
developers.
The complaint centers on the allegation that Quorum Latitude, a
cross-platform compatibility tool that enables Macintosh-compatible
applications to run on other computer platforms, violates Apple
patents on "pull-down menus" and "Color QuickDraw" and Apple's
copyrights. Latitude relies solely on the use of Motif or Open Look
for pull-down menus and uses Adobe Display PostScript or SunSoft NeWS
for screen rendering, and therefore could not infringe on Apple's
patents or copyrights.
Quorum asks the United States District Court for the Northern District
of California to rule that Quorum has not infringed any copyrights or
patents of Apple and to prohibit Apple from making further assertions
that Latitude violates any Apple intellectual property rights.
"From the very beginning of our technology development, we have
carefully avoided any perceived or actual infringement of Apple's
intellectual property rights," said Sheldon Breiner, president and
co-founder of Quorum. "For Apple to accuse us of impropriety is to
discredit the technical innovations we have achieved in our Quorum
Compatibility Engine and Latitude product."
"Like any other independent developer, we read publicly available
information such as Inside Macintosh and then wrote some innovative
software," said R. Martin Chavez, co-founder and chief technical
officer. "The Compatibility Engine simply liberates
Macintosh-compatible applications to run on other platforms without
touching any of Apple's Macintosh technology."
Quorum Latitude is based on a core technology called Quorum
Compatibility Engine. When an original Macintosh-compatible
application makes a call to any systems facility, the Compatibility
Engine responds by rerouting the request to a similar service resident
on computers using the UNIX operating system. For screen display, the
Compatibility Engine redirects Macintosh-proprietary QuickDraw calls
directly into Display PostScript or NeWS. The PostScript language is
a hardware-independent imaging language that supports any range of
display, resolution and output devices...
--==--
<>MacBlaster game, by Christopher Glaeser, team1!cdg@uunet.uu.net<>
Check out page 248 of the June issue of Windows. There is a promotion
for a shareware program called Macblaster written by Earl Gehr. It is
a game that pits your PC against a fleet of attacking Macs. The Macs
zip across the sky trying to destroy your PC by dropping copyright
bricks. The object is to blast all of the Macs before they hit your
PC with a copyright. Hmmm, interesting tactic indeed.
--==--
<><><>LPF email lists - what they are for<><><>
These lists are for LPF members only, although you may, of course,
redistribute postings to your friends in the hopes of getting them to
actively support the LPF by joining.
This moderated mailing list
league-activists@prep.ai.mit.edu
and its two sub-lists:
league-activists-boston@prep.ai.mit.edu
and league-activists-remote@prep.ai.mit.edu should be used only
for members' requests for assistance in league projects, local or
nationally, or for announcements from LPF.
These lists are filtered by a moderator to:
- insure this use;
- minimize the number of messages;
- remove items meant for the list's -request address;
- forward items that should have been sent to another list.
There may be a delay of up to 3 days for your message to be sent on
L-act, so plan ahead for volunteer requests.
League-tactics@prep.ai.mit.edu is for discussion of LPF directions and
is not moderated.
If you want to subscribe, change your eddress (email address), or be
removed from either list, please use:
league-activists-request@prep.ai.mit.edu
or league-tactics-request@prep.ai.mit.edu
--==--
<><><>Apple-Microsoft/HP suit news<><><>
This spring, most of Apple's case against Microsoft and Hewlett
Packard was dismissed by the judge.
The partial decision dropped the case against Hewlett Packard. It
also dropped most of the case against Microsoft, but not all.
The reason given by the judge was that Microsoft's old contract with
Apple gave Microsoft the right to do most of the things covered by the
suit. The judge did not rule on the question of whether the style of
a user interface can be copyrighted at all, so the decision would have
no effect if Apple (or someone else) were to sue someone other than
Microsoft in the exact same way.
A few weeks ago a story circulated on the Internet that the partial
decision in the Apple versus Microsoft case had been withdrawn.
According to Microsoft, this was untrue; the partial decision still
stands. However, we cannot regard it as final, since Apple will
probably appeal.
Addendum: Apple asked the judge to reconsider his partial decision and
he agreed to reconsider. So it's possible the decision will be
changed by the trial court.
--==--
<><><> LPF Boutique: Materials Available from the League <><><>
Please send your order to the League address on the first page
Buttons
We have reprinted the famous ``fanged apple'' buttons. These
buttons show the symbol of Apple computer with an alien snake's body
and face. You can buy buttons by mail from the League, for $2 each,
in quantities of at least three. We give out buttons at events, but
ask for a donation.
Stickers
We also have stickers showing Liberty Empowering the Programmer,
with the League's name and address. You can order stickers by mail
from the League at $5 for 10 stickers; for larger orders, phone us to
discuss a price. We hand them out free when it is convenient, such as
at our events, but since mailing packages to individuals costs money,
we want to make it an opportunity to raise funds.
Post stickers at eye level and separated from other posted
articles, to make them easy to see. The stickers are not made to
survive rain.
Liberty Postcards
We also have postcards showing Liberty Empowering the Programmer,
with the League's name and address. Same terms as the stickers.
Large Liberty Posters
We have a few posters with the same image that is on the
stickers, approximately 2.5 ft by 1.5 ft. They are $4 each and $4
total shipping and handling in the US for the first one to five
posters, and $2 for each additional five.
Coffee Mugs
Our coffee mugs have the Fanged Apple design in full color on one
side and ``League for Programming Freedom'' on the other. They hold
twelve ounces and are microwave safe. You can order a mug for $15,
nonmembers $17, plus $3.00 shipping and handling. They are now in
stock. Note the price increase.
T-Shirts
Michael Ernst has produced t-shirts with Liberty and ``League for
Programming Freedom'' on the front and ``Innovate, Don't Litigate'' on
the back. (The back slogan will change from time to time.) You can
order shirts by mail from the League for $10, nonmembers $12, plus $2
for shipping and handling. Available colors are yellow, blue and
peach; if you specify a color, we will assume you would rather have
the other color than no shirt. If you want a chosen color or nothing,
say so explicitly. Please specify the shirt size! (M, L or XL.)
We are temporarily out of XL shirts, but are getting some back from a
member who had volunteered to sell some and sold a dozen.
Position Papers and Memberships
We will send anyone a copy of the League position papers. If you
want other copies to hand out at an event, we'll send you as many as
you need. Please discuss your plans with us. One-year memberships
are $42 for professionals, $10.50 for students, and $21 for others.
The dues are $100 for an institution with up to three employees, $250
for an institution with four to nine employees, and $500 for an
institution with ten or more employees. For $5000, an institution can
be a sponsor rather than a member. We have 10 inst. members, now.
League Papers Online
You can retrieve LPF written materials by anonymous ftp from
prep.ai.mit.edu in the directory /pub/lpf. These include the position
papers, membership form, handouts, friends of the court briefs, and
articles about the LPF's issues of concern.
League Video Cassettes
We have video tapes of some of Richard Stallman's speeches for the
LPF. If you'd like to give LPF speeches, we can send you copies of
these tapes to give you an example to learn from. If you'd like
copies for another purpose, we can send them for $20 each. <><><>
<><><> End of June 1992 Programming Freedom <><><>
tic
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