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From: Jean-Michel POURE <jmpoure@translationforge.com>
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To: Bernard Lang <Bernard.Lang@inria.fr>,
	Jean-Baptiste Soufron <jbsoufron@free.fr>
Subject: Abstract law becoming Fictive law - Is this a new "Star Academy" effect?
Date: Thu, 23 Oct 2003 14:15:34 +0200
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Le Jeudi 23 Octobre 2003 12:20, Bernard Lang a =E9crit :
> excellent contribution

Thank you, I appreciate your comment very much, as I know you are a long-ti=
me=20
fighter for liberties.

Now, I would like to ask Jean-Baptiste Soufron, from CNRS - CERSA Paris 2 L=
aw=20
University, information about a theory of law. If someone on the list is=20
familiar with theories of law, do not hesitate to give information.

My question is about a notion called "La fiction de la loi" in French, whic=
h=20
could be translated into English by "Abstract law" (correct me if I am=20
wrong).

Basically, this notion means that the law is abstract in order to be able t=
o=20
deal with many aspects of a problem. It allows judges to adapt their=20
judgement case by case. This notion was discussed in the previous threads.

But, here, we have a different case. I feel that the law is slowly evolving=
=20
from an "abstract nature" into a "fictive nature".

I am not a man from law, so consider this text as an amateur attempt to=20
analyse the problem of law. Here are some facts:

1) "Fictive" patents:

The idea of patenting ideas, languages or art is completely absurd. But, th=
is=20
is exactly what patents on software are proposing to do.

As explained in my last message, everyone is well-aware that patenting=20
software is stupid: managers, financial directors, large investors and=20
politicians. In some ways, registering a patent is like buying land on the=
=20
moon and everyone knows it.

But, for some unknown reasons people prefer dreams to reality. This is like=
=20
the old times of Communism. Or the times when people pretended Yahoo could =
be=20
worth 100 times Ford Motors Company.

2) "Fictive" problems:

A law always answers a "problem".

In the case of patents on software, everyone was happy about the system unt=
il=20
the Americans started to register patents on software at the EPO. Before=20
then, there was no problem. Even economists agree that patents on software=
=20
can stop the innovation.

So where is the problem? The answer is that many patents have been register=
ed=20
illegally at the EPO. In a way, "the problem is that there is a problem",=
=20
which is a syllogism. Just like in Kafka books.

3) "Fictive" lobbying:

I would also like to notice that small organized groups, composed of 1 to 1=
0=20
actors, are trying to pretend they represent the vast majority of us.

Three example:

+ On this mailing list, you can notice the posts from Mr Old Timer, who tri=
es=20
to speak for the Community.
+ At the European Commission, free software developers are represented by s=
ome=20
unknown organisation without any member base, created for the sole discussi=
on=20
of patents. Probably created by the European Commission itself.
+ When I was in Brussels for a presentation, I could notice in the room=20
several individual, obviously being paid to clap their hands, when patent=
=20
lobbyists were speaking. I had never seen that before...

Basically, in the free software public, the situation is as such: 99% again=
st=20
software patents, 1% pro software patents. But, it seems like lobbyists hav=
e=20
hired actors.=20

When is it that Actors should take place in a political discussion, either=
=20
pretending they are "representatives", "Old-timers" or even "supporters"?

The cinema and the theater are a place for acting, lobbyists should not hir=
e=20
actors. All this reminds me of the cold war, when psychology was used as a=
=20
weapon. Who could be so stupid to believe in these old methods?

4) "Fictive" inventors and companies:

In the United-States, there are examples of lawyers registering software=20
ideas, waiting some time that companies grow, attacking in court and winnin=
g=20
the battle (ex: case against eBay). In these cases, it seems that the law i=
s=20
"fictive", as it applies only for the benefit of the men who designed the=
=20
laws : lawyers and patent specialists.

In the same vein, some companies have become "patent collectors". Their lar=
ge=20
portfolio of patents enables them to act as patents never existed. These=20
companies use law to create "fictive worlds" where patents do not apply.

*******
etc...
*******

All this makes me think that the notion of "Abstract law" is slowly but sur=
ely=20
evolving into the notion of "Fictive law".

Psychology and acting have now entered the arena of law.

I had this idea watching "Star Academy" in France, a TV show where simple=
=20
people like you and me pretend that they are singers. No-one can believe su=
ch=20
a crap, but everyone pretends the contrary. The show makes a huge audience.

What do you think of this concept of "Fictive law" Mr. Soufron? Can it appl=
y=20
to the attempt to patent software? If it applies, how can the law react in=
=20
theory against such an evolution?

Best regards,
Jean-Michel




