[Patents] DeCSS, source code and software patents

[Jesus M. Gonzalez-Barahona jgb@gsyc.escet.urjc.es]

       Hi,

       Probably many of you are following the DeCSS case. Lately, it
is entering an interesting stage, which could have important
implications for software patents and libre software.

       The main accusation against DeCSS authors is that they have
infringed the Digital Millenium Copyright Act, by "trafficking in a
circumvention device" (capable of decoding DVDs). The line of defense
seems to be that source code may or may not be a circumvention device,
but in any case it is speech, and therefore protected by the
legislation on free speech (which is contemplated in the US
Constitution, and therefore outrules DMCA).

       So the issue now is narrowing to decide where is the barrier
between "speech" and a mere "device". This is currently being reduced
to absurd by cases like the Copyleft T-shirts
(http://slashdot.org/yro/00/08/01/129205.shtml) and in general by the
Gallery of CSS Descramblers
(http://www.cs.cmu.edu/~dst/DeCSS/Gallery/index.html). In addition,
there are precedents (the Berstein case,
http://www.eff.org/bernstein/Legal/19990506_circuit_decision.html),
where source code is considered speech.

       The future will say where the US legal system considers the
boundary for "speech" to be. But the discussion is important in the
sense that what is being ruled is, at the end, whether pure knowledge
(which is what source code is) can be freely disseminated.

       What does all of this have to do with swpatents? Well my
impression is that patents are precisely a way of letting the
knowledge being disseminated, while a monopoly on *devices* is
allowed. Therefore, in the case of libre software, the enforceability
of swpatents comes (in my opinion) to decide whether source code is or
is not a device (or on the other hand, whether it is or not just a for
of speech, to express some specific knowledge). (I'm assuming here
that libre software in this case would be distributed only in source
form, but that wouldn't be an issue, since users can automatically
rebuild their whole libre software system from sources).

       If source code is considered not to be a device,
creating, distributing or modifying it cannot directly infringe a
patent, the same way it cannot be infringed by a book (in fact,
spread of knowledge is what patents are about). This left end-users
with the problem of licensing their binary versions of the
program... or not.

       Of course, you still have contributory infringement. Clearly,
providing source code helps an end-user to circumvent the patent. But
if source code is understood to be a form of speech, its distribution
and creation would be protected by free speech legislation, which in
most legal systems is well above that protecting patent holders... And
therefore, patent law could not forbid it.

       I wonder whether somebody with knowledge in patent and free speech
law in some specific country of Europe can tell us whether all this
has something to do with reality, or is plain nonsense... IIF it had
something to do with reality, I wonder whether Eurolinux or somebody
with deep pockets would be interested in challenging some well known
of those non-existing software patents by distributing source code
apparently infringing it (I vote for MP3 coding software).

       The way things are evolving, we should be preparing for
legislation forbidding specific ways of transmission of knowledge in the
near future. And the boundary between knowledge and opinions is so
close... (is not knowledge just a kind of opinion?). Are we evolving
towards a world where we are not going to be able to *talk* about what
we have discovered?

       Just my 0.02 euro idea, on this sooooo hot evening in Madrid...

       Saludos,

                  Jesus.




-- 
Jesus M. Gonzalez Barahona                | Grupo de Sistemas y Comunicaciones
jgb@gsyc.escet.urjc.es / jgb@computer.org | ESCET, Universidad Rey Juan 
Carlos 
tel: +34 91 664 74 72                     | c/ Tulipan s/n
fax: +34 91 664 74 90                     | 28933 Mostoles, Spain