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Freedom loving lawyers prime primer on open source code

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The Software Freedom Law Center will soon reveal the culmination of a year and half of steady revision and editing: a legal primer for free software projects, designed to make complex issues understandable to the layman. The primer, which will be disgorged on the Law Center’s web site on Monday, walks through issues such as the GNU public license (GPL) and how to use it correctly, copyright assignment and enforcement, and so on.

To coincide with the primer’s release, the SFLC hosted a day-long Legal Summit at Columbia Law School, consisting of panels on the key topics discussed in the primer: copyrights, reverse-engineering and clean-room development, nonprofit organizations, patents, and international law. The panels were hosted by the SFLC’s lawyers, and attracted a diverse crowd.

In attendance were representatives of companies such as Intel, Microsoft, and Hewlett Packard; lawyers (and lawyers in training); advocates from well known groups such as the Foundation for a Free Information Infrastructure (FFII), the Electronic Frontier Foundation (EFF), and the Gnome foundation; and a few lowly journalists.

Attorney Richard Fontana lectured on patents, an issue certain to raise the blood pressure of any open source programmer. Patents aren’t assets that free software projects try to acquire, Fontana explained, they’re seen as nuisances more than anything else. Patents are “a kind of monopoly, though the patent office won’t say it,” he points out, “not to practice an invention per se, but to prevent others from making, doing, or selling something.”

Mental steps

Thirty years ago, there was little argument about where software fell in the patent world. The “mental steps” doctrine stated that mere computerization of the mental process of accomplishing something wasn’t a patentable process, and mathematical algorithms fell under that doctrine. But can’t all software be reduced to mathematics? Today, the pendulum has swung the other way, with software patents being handed out perhaps too readily.

But why are open-sourcers so anti-patent?

Compliance with patents seems nearly impossible, for one thing: Software is inherently more complex than other things, and a large program potentially infringes on hundreds of patents. The cost of searching out that infringement is just too high. Plus reading and understanding patentspeak is nearly impossible; you need a lawyer just to be able to read the damn things.

Another big complaint: patents are supposed to detail how to reproduce or do something, a constraint software patents often fall short of. Should patent applications include some form of source code?

Fontana theorized that programmers feel their work is closer to research work or art, and thus believe strongly in copyrights instead. “Copyright law protects expression,” Fontanta said, “patent law protects ideas and technological principles.”

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