Re: [Patents] meaning of "program"

[Russell McOrmond <russell@flora.ca>]

On Tue, 6 May 2003 xdrudis@tinet.org wrote:

> If we talk about classes of programs, yes the class depends on 
> the equivalence relation. I guess for me as a programmer the 
> natural equivalence relation is having the same source code. So I would 
> probably call a DOS executable and a Unix executable the same 
> program if they come from the same source, and a different 
> program if the port implied a different source (not just some 
>  #defines).


  We end up with problems from those who think in terms of patents
possibly because the 'human factor' in innovation is equated to when a
machine manipulates something.  We then have a meaning of "computer
program" from those software creators who are most comfortable with
copyright protection, but with a different meaning for other people.

  I think I am most comfortable with software copyright because I think of
the software I create similar to how an artist or author thinks of what
they create.  It is not simply about economic incentives, but about who we
are.  The software we write is not simply a set of functionality in an
industrial sense, but an expression in a human readable language of
something that is part of us.

  For me, I see it as follows:

  1) If I write some software, that software is my own work and I should
have some (limited) rights associated with my work.  It should not matter
if someone else wrote another piece of software to serve a similar (or
identical) function -- the implementation is different, and thus should be
considered a different work.  My right to write some software should not 
be denied because someone else "solved the problem" first.

  2) If I start from another piece of software, and modify it, it is a
derivative work and what rights should/shouldn't exist are partly
dependent on the rights granted/denied by the original creator (and the
limits of copyright/etc)

  3) If I compile the software to a binary, or use any other machine
manipulation against the software, it is the same software. If I use a
different compiler, target a different platform, use a language translator
(c to Pascal, whatever), code obfusticator, whatever -- then it is still a
machine manipulation and is neither a unique human created program nor a
derivative work.

> But in case of doubt, I would feel more comfortable calling the two
> versions two programs than otherwise.

  If there is doubt in (3) then "innocent until proven guilty" should be
used in which case a second program should be assumed to be a different
program unless proven otherwise in court.  This is opposite in patent law, 
which is another case where patent law is inappropriate for software.

  It is true that fraud will be committed and machine manipulations will be
used to confuse courts, but in a free society we need to accept some
guilty people going free in order to protect innocent people from being
found guilty!


  When it comes to "computing interfaces" I believe that other more
critical public policy issues exist that are more important than any form
of software creation incentives.  If what I created/invented was a file
format, communications protocol, hardware/software or other type of
computing interface, I do not believe I should be granted any type of
exclusivity on it. It does not matter how much effort/resources I put into
it, the costs to society of this monopoly -- no matter how temporary -- is
simply not worth it.

---
 Russell McOrmond, Internet Consultant: <http://www.flora.ca/>
 Any 'hardware assist' for communications, whether it be eye-glasses, 
 VCR's, or personal computers, must be under the control of the citizen 
 and not a third party.   -- http://www.flora.ca/russell/