Abstract law becoming Fictive law - Is this a new "Star Academy" effect?

[Jean-Michel POURE <jmpoure@translationforge.com>]

Le Jeudi 23 Octobre 2003 12:20, Bernard Lang a écrit :
> excellent contribution

Thank you, I appreciate your comment very much, as I know you are a long-time 
fighter for liberties.

Now, I would like to ask Jean-Baptiste Soufron, from CNRS - CERSA Paris 2 Law 
University, information about a theory of law. If someone on the list is 
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, which 
could be translated into English by "Abstract law" (correct me if I am 
wrong).

Basically, this notion means that the law is abstract in order to be able to 
deal with many aspects of a problem. It allows judges to adapt their 
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 
from an "abstract nature" into a "fictive nature".

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

1) "Fictive" patents:

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

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

But, for some unknown reasons people prefer dreams to reality. This is like 
the old times of Communism. Or the times when people pretended Yahoo could be 
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 until 
the Americans started to register patents on software at the EPO. Before 
then, there was no problem. Even economists agree that patents on software 
can stop the innovation.

So where is the problem? The answer is that many patents have been registered 
illegally at the EPO. In a way, "the problem is that there is a problem", 
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 10 
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 tries 
to speak for the Community.
+ At the European Commission, free software developers are represented by 
some 
unknown organisation without any member base, created for the sole discussion 
of patents. Probably created by the European Commission itself.
+ When I was in Brussels for a presentation, I could notice in the room 
several individual, obviously being paid to clap their hands, when patent 
lobbyists were speaking. I had never seen that before...

Basically, in the free software public, the situation is as such: 99% against 
software patents, 1% pro software patents. But, it seems like lobbyists have 
hired actors. 

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

The cinema and the theater are a place for acting, lobbyists should not hire 
actors. All this reminds me of the cold war, when psychology was used as a 
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 
ideas, waiting some time that companies grow, attacking in court and winning 
the battle (ex: case against eBay). In these cases, it seems that the law is 
"fictive", as it applies only for the benefit of the men who designed the 
laws : lawyers and patent specialists.

In the same vein, some companies have become "patent collectors". Their large 
portfolio of patents enables them to act as patents never existed. These 
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 
surely 
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 
people like you and me pretend that they are singers. No-one can believe such 
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 apply 
to the attempt to patent software? If it applies, how can the law react in 
theory against such an evolution?

Best regards,
Jean-Michel