Re: [Patents] newsscan: Software patent limits 'go too far'

[Xavi Drudis Ferran <xdrudis@tinet.org>]

El Wed, Oct 22, 2003 at 07:06:06PM +0200, Jean-Baptiste Soufron deia:
> 
> I just say that law needs to be interpretated. The text in itself means
> nothing, only the intepretation does. 
>

Sorry, I don't buy that. I understand the job of jurists and lawyers is all 
about 
interpreting laws, and defending one point of view over another, but 
saying the written law means nothing is unacceptable in any society that 
even merely pretends to be democratic. It's just like a system administrator
saying that data must be efficiently stored and processed, kept safe and 
accessible, etc. but whatever the data means is unimportant. This is 
only true for what she is concerned. Her users will surely care both from
the safety of the data and its meaning, because handling bits is not 
their concern, just a tool they use. And in the end, the money that pays
the system administration comes from the benefits the users have from the
data processing and the meaning of it, so it is not so wise for the 
system administrator to forget the meaning is important.

The judges are experts in law, systematics, etc. And have a useful role 
in sorting out the particular cases in a just, useful and systematic way.
Lawyers also have a useful role in providing different interpretations 
of the law (and the evidence) to explore the case. But they should all be 
faithful to the written law, because the written law is the will of 
the people and that is the ultimate thing that matters in a democracy. 
If we think the written law is unimportant and we must all accept whatever
interpretation judges and lawyers come up with, then we could just 
get rid of the legislative power and submit to a sophist technocracy 
of lawyers. It would be just as unproductive, caotic and retrograd as 
a society based on brute force between the individuals to fix conflicts.


> >   When both technicians and economists agree that sofware patents are
> > bad for the economy and the technology, would the jurists be kind
> > enough to acknowledge and SHUT UP.
> 
> Why? At the end of the XIXth century, everybody agreed that an employee
> could be fired without any compensation and without any explanation.
> Hopefully some jurists did not not agree with that and they
> interpretated laws in other ways to allow the system to evolve. 
>

What does "hopefully" mean in a past tense sentence? 
 
I don't doubt many jurists do a lot of good job in applying the law
and showing issues. But in the end the labor rights were upheld because
society shifted its mindset (and because many other workers died in the 
beginning of labour unions to get society to change, it was not only 
lawyers). 

> Just look at the ambiguity of your arguments : I guess that smokers and
> cigarette manufacturers all agree that tobacco should cost less and be
> more easy to get. Should we let them decide because they all agree on
> it?
>

This is just a reason not to let decide patent professionals who will
earn more money the more patents they are. 
 
> Plus, it does not look like everybody agrees. There are also questions
> raised by people afraid if there is no software patents. For example,
> why is it better to let them software be free when people who live from
> patented softwares could lose their jobs? Even on this small list,

Very few people live from patented software. Any jobs lost would be 
easily recovered by an economy with innovation and competition. At 
most if some company could not recover from an attempt to twist the 
law into uncompetitive advantage over others, people would have to 
go work elsewhere or start their own company, which would be much more
easier without swpats than with them. 

> everybody does not agree. Consensus could only come of discussions and
> talks. That's why it's so important to let the judges do their job and
> interpret law so a consensus can appear step by step. 
>

Consensus must appear in society (or at least debate must appear and a
majority view prevail). This consensus or majority must be expressed
in a law and judges should then follow that law in particular cases. 
Judges are no source of consensus, and they should not steal the legislative 
power. 
 
> I think software patents are a bad thing. 
>

agreed
 
> I don't think there is enough consensus on it and on why so we could
> just ask everybody to shut up and listen to what computer scientists
> believe. Why not patents? What instead? Is author's rights a good

There is enough consensus. I wish there was as much consensus in most
political matters. You will never get 6 000 000 000 people to agree in
anything, though, so you should be prepared to sacrifice the minority
opinion of those who expect to profit from swpats at the expense of
society. Of course we should listen to them, and nobody has to shut
up.  In fact if they ever convince me that swpats are good, it'll be a
lot less work for me, and I'd be thankful. But they're not convincing
at all, for all I've read.

> solution? If yes, should we still protect it 70 years after the death of
> the author? What about DRM protected by author's right then? And so
> on... 
> 

sure. All that needs debate. It may be easier if we don't mix the issues, 
though. 

> "NO to software patents" but please, we're here on a list to discuss
> about it, let the discussion happen and people make their own opinion
> about it. I am sure you know, it's called democracy. And, by the way, if
> you want to fight someone, I suggest you fight politics corrupted by
> lobbying more than jurists who tries to translate what you all want in
> legal terms. 
>

The problem is that while the contribution of jurists is extremely
important the danger is they are sometimes too much used to current
law and caselaw and it is part of the professional ability to argue
any view, so they have a harder time than the rest of us in the
political debate. They have to shift their usual work of applying the
law that is to deciding what law should be. And they have to argue in
a way that is convincing to a constituent, not to a judge. They don't
often succeed in that and it leads to either people believing in them
blindly as an authority, or ignoring them as hard to understand. Both
are disasters. The difference between case law systems and continental
systems does not help either. Of course that is not always the case,
and when that does not happen it is extremely useful debate. But
considering all problems in tha debate, and the fact that some jurists
may stand to profit more from some of the options discussed than
others, I beg you a little patience with those intransigent with
jurists.

> Let's not get this personnal. 
> 

Sure.

-- 
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Xavi Drudis Ferran
xdrudis@tinet.org