Personal FAQ

WIPO Feedback (6-Jun-2005)

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My positions on issues related to this discussion topic:

The US DMCA's criminalization of what should be a civil matter (copyright) should be reversed within the US, and certainly should not be picked up and emulated globally. Whatever else may be said about the effect of copyright law on sharing, it is plain that the spectre of jail time can have a chilling effect on people's willingness to attempt many important kinds of sharing.

In cases where software is created that is so controlling as to inhibit even traditional "fair use", it would be useful (by analogy to Real Property), to formally create in law the notion of an Intellectual Property "easement". That is, to allow a person with a legitimate "fair use" need to sue the maker of a tool that is overly restrictive for some form of relief from the overly restrictive nature. Presumably the form of relief would be some piece of software that enables the fair use.

The Public Domain is a very important concept. The ability to place other works into the Public Domain is critically important. Works that are in the Public Domain are the only TRUE "free software" because anyone can use them freely. The term "free software" should never be applied to vehicles like GPL, which inhibit certain uses.

The GPL is a commercially complex issue, far less of a panacea than its advocates suggest. Although there are places where the GPL has had a positive effect in the marketplace, in many situations, it behaves more like "dumping", driving the price of products so artificially low that no commercial entity can continue in the market. Extreme care should be used by governmental organizations when considering proposals by some to offer GPL-like mechanisms any kind of special or preferred status in law.

Open Source software (in which I include any software whose source is accessible to the end-user Public Domain software, GPL'd software and similar vehicles, and even commercial software whose source is made available under stricter copyright restrictions) may be essential to government-provided missions, since the processes of government should be inspectable. It is possible to construct open-source software that nevertheless protects its data; for example, tools for electronic voting, if such are created, must be inspectable at the code level and tightly protected at the data level. These goals are not incompatible.

Notwithstanding my disagreement with a number of people about the unconditional virtue of the GPL in the copyright domain, I join those who say that the Software Patent is deadening to the software business. At minimum: its term should be shortened to probably 3 and no more than 5 years, and "independent reinvention" should be seen as evidence of "obviousness" not "infringement". However, my more radical proposal is that since software patents are almost never appropriate (RSA is the only example I have ever seen cited that most people seem to agree even deserved a software patent), a system more like the Nobel Prizes should be created as an alternate form of incentive, granting a very tiny number (fewer than ten) patents per year as an award incentive for real innovation recognized by peer judges world-wide. That would create an incentive to do REAL and RESPECTED innovation, would keep the space of patents small enough that they could be known to everyone, and the prestige would be adequate incentive to real innovation. A more detailed version of this software patents proposal can be found at my web site at the following URL: http://www.nhplace.com/kent/PFAQ/software-parents.html