[8563] in Commercialization & Privatization of the Internet
Re: Multimedia has been patented
daemon@ATHENA.MIT.EDU (Tansin A. Darcos & Company)
Mon Nov 22 18:36:29 1993
Date: Mon, 22 Nov 1993 17:38:32 -0500 (EST)
From: Tansin A. Darcos & Company <0005066432@mcimail.com>
To: Barry Shein <bzs@world.std.com>, com-priv@psi.com
>From: Paul Robinson <TDARCOS@MCIMAIL.COM>
Organization: Tansin A. Darcos & Company, Silver Spring, MD USA
-----
Barry Shein <bzs@world.std.com>, writes:
>> From: "Tansin A. Darcos & Company" <0005066432@MCIMAIL.COM>
>> Some people have been upset over what is referred to as the
>> "patenting of mathematics" with the PKP patents on public-key
>> cryptography. If these men invented the particular means of
>> doing this, they are entitled to protection.
>
> No, the correct wording would be "they MAY WELL be entitled to
> protection". No one made you judge, jury and executioner.
Hehehe. Et. Tu, Barry. Testy today, aren't we?
> Are they also entitled to broadening it to ANY scheme
> involving two keys, one private and one public?
To toss your own words back at you, "they MAY WELL be entitled
to protection." Hehehe. I don't know; I can use the PGP
program and have played with it a few times; Mr. Zimmerman's
capabilities far exceed mine to understand how this stuff is
done; the mathematics involved go way over my head.
>
> That's the issue, not so much whether or not their specific
> way of doing this is patentable (tho even that's contestable),
> but whether they can broaden it to anything vaguely resembling
> the subject of their patent, regardless of the mechanisms
> employed.
That again is a question that can only be satisfactorily
solved in a political manner. Either we need to go back to
congress and get them to change the laws, or convince some
agency to condemn this patent and buy it under eminent domain.
> Historically if someone, eg, invented a good elevator brake
> and then someone else came up with a completely different
> method for stopping an elevator then the latter wouldn't be
> considered a violation of the first.
To throw your own words back at you, Barry, :) the CORRECT
term to use would be "the latter wouldn't NECESSARILY be
considered a violation of the first." It MIGHT be a violation;
it MIGHT NOT be. That's for someone who knows what the claims
in the patent are and understands the technology to make the
call.
> What we have here is, to pursue the analogy, someone invents
> an elevator brake and then proceeds to lay claim to anything
> that comes along which slows down or stops an elevator.
I think Polaroid has been doing this with instant film and
cameras.
I was once talking to another person doing searches over at
Trademarks and we discussed a number of things. He mentioned
that if you ever make any product, do not ever use the word
"Toro" or anything close, and expect to be able to register it
without a nasty fight from the lawnmower company of the same
name. They have won many and lost some but their porcupine
attitude towards their trademark has had attorneys and agents
tell their clients to use another term unless they have deep
pockets to fight.
> Historically that's pretty much w/o precedent. It's one
> thing when there really is only one way to do something, and
> another when one lays claim to any method of accomplishing the
> same goal rather than just their specific mechanism.
Historically there is precedent stemming from the Motion
Picture Patents Company case I mentioned, as well as other
cases.
One of the problems has been that back during the New Deal,
the Roosevelt-appointed judges were routinely finding patents
invalid on possibly shaky grounds. Apparently the pendulum
has swung the other way.
> > I'd be more concerned with the (IMHO) unconstitutional stand
> > of the U.S. Government that one needs a license to export
> > computer programs (which are a form of writing) which do
> > cryptography, in a clear violation of the 1st Amendment.
>
> The 1st amendment has never held much sway when the "speech"
> involved may be giving aid and comfort to the enemies of the
> United States.
The particular laws at hand declare that the privately
developed information which is not government property may be
published outside the U.S. or shown to a non-citizens only with
a license from the U.S. Government. By these standings, if the
information was published in the {New York Times}, the Times would
have to have a license to print their paper!
> One can certainly argue that on a case by case basis, but I
> think your appeal to the constitution is without any merit so
> long as the govt bases it upon national security, freedom of
> speech doesn't protect you if you reveal what is considered to
> be a threat to nat'l security.
Wrong way. When there is a particular law that restricts the
right to publish something, the onus is on the government to
show that it is hazardous; not upon the individual in question
to prove it is not.
I know of no case where privately developed non-military
information that is not developed under secrecy provisions
and are not secret in the U.S. could require a government
license to be printed elsewhere. Such a standing is clearly
contradictory to the 1st Amendment.
> Now one can argue that the specific application of those laws to
> algorithms which are completely available to any "enemies" is
> ill-founded and should be struck down as silly.
No, a law that's silly can be upheld. But a law that
constitutes "prior restraint" can be struck down. This law
declares published non-government information to be subject to
government permission to be reprinted. That constitutes (IMHO)
impermissible prior restraint.
> But there's no 1st amendment issue anywhere to be found in
> that (at least not until the nat'l security interest is shown
> to be invalid), it's simply a policy matter. They can release
> the munitions claims on any number of well-disclosed
> cryptographic techniques (e.g. DES) but still hold others as
> non-disclosable. Would you claim that there exists no
> cryptographic method which should fall under nat'l security?
Not if it is publicly published in the United States. Once it
is published and publicly available, the claim of "national
security" becomes a specious phrase for "prior restraint".
> Should the folks who know the cryptographic methods used in moving
> to defcon 5 (or one, I always forget, full-scale nuclear war) be
> allowed to share their knowledge publicly lest their 1st amendment
> rights be violated?
People who are in the military lose certain rights. And to
the best of my knowledge these methods are not public
information. When they start writing the codes up in public
documents, that's another matter.
Maybe I have it wrong, but the movie "Wargames" (and other sources)
indicate Full Scale Nuclear War is DEFCON 1, not 5. I thought
Defcon 5 indicates lack of threat.
> The Securities and Exchange Commission had the same
> unconstitutional stance on newsletters until a court told them
> they can't do that.
>
> Since to my knowledge the SEC doesn't generally dabble in
> national security matters nor regulation of the export of
> munitions I don't see the analogy.
The SEC had a rule that anyone writing a newsletter on stocks
or financial matters had to have a license from them. You
could not sell a newsletter to subscribers to advise them of
various stocks or other conditions unless you had a government
license to do so. And you were subject to conditions that Time
or U.S. News would never have stood for: you had to escrow the
money for subscriptions and could only release 1/12th of the
subscription price each month, or 1/52nd each week, or whatever.
Get the significance: you had to have a government license
before you could publish this material even though it was
privately created. And the requirement was struck down as
Prior Restraint.
> > Someone here asked me why I said that if there is an issue
> > involved, the place to argue it is in the courts, with
> > congress, or with the PTO's administration; I'll say that
> > arguing it here is an easy way to vent one's spleen but is an
> > exercise in futility. If the laws are so intolerable that
> > they are damaging to society, then the laws need to be changed.
>
> So then why do you bother to post?
I'm not the one worried about the problem. If, in writing a
program, I need an algorithm I make one up or I look it up; if
it's patented I don't worry about it because I'm judgement proof
and have no siezeable assets; I most likely represent too small a
target to bother suing; since I don't advertise my existence I'm
unlikely to be sued.
But it's also to inform people that most of them are probably
"preaching to the converted."
If you oppose abortion, you don't get much done by sitting
around with the same groups whining about it, you go out and
picket and/or blow up abortuaries or shoot doctors or bribe
state legislators. :)
> I have yet to see anyone who has given a really valid reason
> why patenting of industrial articles is acceptable, but
> patenting of software is not.
>
> Perhaps your problem is myopia and not with the arguments?
>
> >What does a new and improved paint have that entitles it to patent
> >protection, but that a new and improved sort routine does not?
>
> A 200+ year history of not allowing patents on mathematical
> devices?
Then what is needed is people who oppose this to watch the
Gazette for applications and set up a list to post comments
when they see software related applications and file comments
with the PTO in these cases, as Phil Karn did when his
development was patented by someone else more than a year
after it was published. We also need to encourage people to
publish more of their algorighms so that this stuff is
publicly known. And perhaps we need to get together with
people from the PTO or find people in congress willing to
sponsor legislation to cover the subject.
In normal circumstances, individual action is what is
important, but since the problem is political you have to
solve it in political ways. That means doing more than
whining about it if it affects you.
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Paul Robinson - TDARCOS@MCIMAIL.COM
Voted "Largest Polluter of the (IETF) list" by Randy Bush <randy@psg.com>
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